United States District Court, D. Arizona
V. Wake Senior United States District Judge.
Jennifer Spooner seeks review under 42 U.S.C. § 405(g)
of the final decision of the Commissioner of Social Security
(“the Commissioner”), which denied her disability
insurance benefits and supplemental security income under
sections 216(i), 223(d), and 1614(a)(3)(A) of the Social
Security Act. Because the decision of the Administrative Law
Judge (“ALJ”) is supported by substantial
evidence and is not based on legal error, the
Commissioner’s decision will be affirmed.
was born in September 1976. She completed ninth grade and has
a GED. She has worked as a waitress, bartender, and hostess.
She suffers primarily from neck and lower back pain and
migraine headaches. She was 29 years old on the alleged onset
date of disability, December 15, 2005. She lives with her
disabled father and two daughters, one of which was born on
December 15, 2005, and the other on November 20, 2001. In May
2012, she reported being able to drive, go out alone, shop
for groceries weekly, feed pets, do laundry, wash dishes,
watch television, walk one flight of stairs, go outside a few
times daily, and walk for ten minutes before needing to rest.
In 2010 and 2013, Plaintiff reported exercising regularly.
February 3, 2012, Plaintiff applied for disability insurance
benefits and supplemental security income, alleging
disability beginning December 15, 2005. On March 3, 2014, she
appeared with her attorney and testified at a hearing before
the ALJ. A vocational expert also testified. On April 7,
2014, the ALJ issued a decision that Plaintiff was not
disabled within the meaning of the Social Security Act. The
Appeals Council denied Plaintiff’s request for review
of the hearing decision, making the ALJ’s decision the
Commissioner’s final decision. On August 27, 2015,
Plaintiff sought review by this Court.
opening brief, Plaintiff identified three issues for this
1. Did the ALJ mischaracterize Plaintiff’s treating
physician’s surgical recommendation because
reconstructive surgery is by definition debilitating, and, if
so, was it harmful error?
2. Did the ALJ properly consider Plaintiff’s
fibromyalgia as required under SSR 12-2p?
3. Was the ALJ’s conclusion that Plaintiff could return
to her past work as a hostess supported by substantial
response, in the context of the second issue, Defendant
stated that Plaintiff’s opening brief had not
challenged the ALJ’s credibility determination and
therefore Plaintiff waived it. In her reply, Plaintiff stated
that because the ALJ’s credibility determination is
wholly irrelevant to Plaintiff’s objectively severe
impairments, Plaintiff did not want to waste the
Court’s time arguing harmless error. But she also
stated that credibility determinations now are improper under
SSR 16-3p, published on March 28, 2016. The Court granted
Defendant leave to file a surreply to address issues raised
for the first time in Plaintiff’s reply and granted
Plaintiff leave to respond to Defendant’s surreply. The
Court has reviewed and considered all of the parties’
STANDARD OF REVIEW
district court reviews only those issues raised by the party
challenging the ALJ’s decision. See Lewis v.
Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). Claims
that are not actually argued in an appellant’s opening
brief are not considered on appeal. Indep. Towers of
Washington v. Washington, 350 F.3d 925, 929 (9th Cir.
2003). Only issues that are argued specifically and
distinctly in a party’s opening brief are reviewed.
Id. Moreover, “when claimants are represented
by counsel, they must raise all issues and evidence at their
administrative hearings to preserve them on appeal.”
Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir.
1999). Failure to do so will only be excused when necessary
to avoid a manifest injustice. Id.
may set aside the Commissioner’s disability
determination only if the determination is not supported by
substantial evidence or is based on legal error. Orn v.
Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial
evidence is more than a scintilla, less than a preponderance,
and relevant evidence that a reasonable person might accept
as adequate to support a conclusion considering the record as
a whole. Id. In determining whether substantial
evidence supports a decision, the court must consider the
record as a whole and may not affirm simply by isolating a
“specific quantum of supporting evidence.”
Id. Generally, when the evidence is susceptible to
more than one rational interpretation, courts must uphold the
ALJ’s findings if they are supported by inferences
reasonably drawn from the record. Molina v. Astrue,
674 F.3d 1104, 1111 (9th Cir. 2012). “Overall, the
standard of review is highly deferential.” Rounds
v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002
(9th Cir. 2015).
Security Rulings (“SSRs”) do not carry the force
of law, but they reflect the official interpretation of the
Social Security Administration and are binding on ALJs.
Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir.
2012). They are entitled to some deference to the extent they
are consistent with the Social Security Act and regulations.
error principles apply in the Social Security Act context.
Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.
2012). An error is harmless if there remains substantial
evidence supporting the ALJ’s decision and the error
does not affect the ultimate nondisability determination.