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Spooner v. Colvin

United States District Court, D. Arizona

July 22, 2016

Jennifer Spooner, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


          Neil V. Wake Senior United States District Judge.

         Plaintiff 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.

         I. BACKGROUND

         Plaintiff 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.

         On 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.

         In her opening brief, Plaintiff identified three issues for this appeal:

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 evidence?

         In 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’ briefing.


         The 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.

         A court 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).

         Social 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. Id.

         Harmless 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. Id. ...

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