United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is Plaintiff Kimberly Lynn Schwab’s
appeal from the Social Security Commissioner (the
“Commissioner”)’s denial of her application
for a period of disability, disability insurance payments,
and supplemental security income. (Doc. 1). Plaintiff argues
that the Administrative Law Judge (“ALJ”) erred
in finding that Plaintiff was not a credible witness, and by
failing to properly weigh the medical evidence that was
before her. (Doc. 11). The Court now rules on
was born in June of 1977, and holds at least a high school
education. (Doc. 10-3 at 39). In May of 2010, Plaintiff
injured her lower back at work while attempting to lift a
table, (id. at 31), and was subject to coverage by
workers compensation. (Id. at 51). By July 2010,
Plaintiff “returned to full-time work in a sedentary
supervisory position, ” (id. at 37), and was
working with the Childrens’ Center, but “had
difficulty maintaining that work.” (Id. at
52). By mid-2011, her symptoms had worsened, (id.),
and Plaintiff has not engaged in substantial gainful
activity-including employment-since May 17, 2011.
(Id. at 28).
met numerous times with Jeffrey Scott, M.D., the
“physician assigned to [Plaintiff] through her
worker’s compensation claim.” (Doc. 10-3 at 36).
Dr. Scott opined “on multiple occasions that
[Plaintiff] is unable to sustain full time employment on a
regular and continuous basis, ” and that she would
require numerous work-related restrictions. (Id.).
Following an MRI in July 2011, and in light of
Plaintiff’s unimproved status, Dr. Scott echoed an
earlier medical recommendation from another doctor that
Plaintiff turn to surgery to treat her lower back. (Tr.
610). In October 2011, Plaintiff underwent
“percutaneous transforaminal endoscopic discectomy with
closure of the annular tear at ¶ 4-5 and L5-S1, ”
(Doc. 10-3 at 28), and was unable to work until at least
December 2011. (Id. at 36). Plaintiff’s
condition did not improve post-surgery, however, and Dr.
Scott recommended epidural injections coupled with opioid
treatment for the pain. (Tr. at 600, 602).
January 2012, Plaintiff met with Mark Binette, M.D., for a
“consultative examination at the request of the State
agency.” (Doc. 10-3 at 34). Dr. Binette diagnosed
back pain, and “opined [that] there were no conditions
that would impose any limitations for 12 continuous
months.” (Id.). Plaintiff thereafter met with
Monte Jones, M.D., in September 2012, who diagnosed Plaintiff
with back pain, a history of lumbar spine surgery, and
depression. (Id.). The record indicates that
Plaintiff continued to meet with medical professionals due to
her lower back injury, including Barton W. Butterbaugh, M.D.,
for symptoms of insomnia and continued back pain, as well as
the Desert Institute for Spinal Care. (Tr. 552-53, 575-580,
also underwent a psychological evaluation in October 2012,
when she met with Alexander Piatka, Ph.D. (Doc. 10-3 at 34).
Dr. Piatka diagnosed Plaintiff with “depressive
disorder” and opined that Plaintiff’s
“symptoms appeared moderate in severity.”
(Id.). Plaintiff’s psychological treatment
continued in July 2013 when she met with Shannon Tromp,
Ph.D., for evaluation. (Id. at 35). Plaintiff was
subjected to a “mini mental status exam” and
“scored 30 out of 30.” (Id.). Dr. Tromp
opined that Plaintiff would have difficulty with
“sustained concentration due to pain” and
“would miss more than [three] days per month as a
result of her pain and pain disorder, ” but noted
“no specific work limitations.” (Id.).
Nurse practitioner Judith Hahn “submitted a
statement” in regards to Plaintiff’s
psychological condition, and opined that Plaintiff suffered
from “mild to moderate limitations of functioning,
” as Plaintiff struggled with “simple decision
making, ” “anxiety, ” and “difficulty
in social settings, ” but could return to a
“low-stress” job and would likely miss “2-3
days of work per month.” (Id. at 37-38).
Ultimately, Plaintiff was diagnosed with the “severe
impairments” of “depressive disorder, ”
“anxiety disorder, ” and “opiate
dependency.” (Id. at 28). Licensed counselor
Gabriella Montgomery also submitted an opinion as to
Plaintiff’s mental well-being, opining that there were
“marked limitations” to Plaintiff’s
cognitive and social abilities, such as concentration,
punctuality, maintaining regular attendance, and maintaining
an uninterrupted work schedule. (Id. at 38).
testified that she is still in pain throughout the day,
ranging from mild to severe, and that she still has
difficulty walking, sitting, and standing. (Tr. 57, 63). As
of April 2013, Plaintiff was living with a family friend, and
tries to spend time outside of the house at least once a
week. (Id. at 63).
September 26, 2011, Plaintiff filed an application for a
period of disability and disability insurance benefits. (Doc.
10-3 at 26). Plaintiff thereafter sought supplemental
security income on November 1, 2011. (Id.).
Plaintiff’s claims were initially denied on February 7,
2012. (Id.). Plaintiff timely requested a hearing,
which was conducted by ALJ Patricia A. Bucci on April 4,
2013, and a supplemental hearing was held on August 9, 2013,
in Phoenix, Arizona. (Id.). On September 3, 2013,
the ALJ issued an unfavorable decision, and affirmed the
decision upon reconsideration on October 17, 2012.
(Id.). After Plaintiff’s request for review by
the Social Security Administration Appeals Council was denied
on April 14, 2015, she commenced this action in federal court
on June 12, 2015. (Doc. 1).
ALJ’s decision to deny benefits will be overturned
“only if it is not supported by substantial evidence or
is based on legal error.” Magallanes v. Bowen,
881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted).
“Substantial evidence” means more than a mere
scintilla, but less than a preponderance. Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998).
inquiry here is whether the record, read as a whole, yields
such evidence as would allow a reasonable mind to accept the
conclusions reached by the ALJ.” Gallant v.
Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation
omitted). In determining whether there is substantial
evidence to support a decision, the Court considers the
record as a whole, weighing both the evidence that supports
the ALJ’s conclusions and the evidence that detracts
from the ALJ’s conclusions. Reddick, 157 F.3d
at 720. “Where evidence is susceptible of more than one
rational interpretation, it is the ALJ’s conclusion
which must be upheld; and in reaching his findings, the ALJ
is entitled to draw inferences logically flowing from the
evidence.” Gallant, 753 F.2d at 1453
(citations omitted); see Batson v. Comm’r
of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). This is because “[t]he trier of fact and not the
reviewing court must resolve conflicts in the evidence, and
if the evidence can support either outcome, the court may not
substitute its judgment for that of the ALJ.”
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.
1992); see Young v. Sullivan, 911 F.2d 180, 184 (9th
is responsible for resolving conflicts in medical testimony,
determining credibility, and resolving ambiguities. See
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Thus, if on the whole record before the Court, substantial
evidence supports the Commissioner’s decision, the
Court must affirm it. See Hammock v. Bowen, 879 F.2d
498, 501 (9th Cir. 1989); see also 42 U.S.C. §
405(g). On the other hand, the Court “may not affirm
simply by isolating a specific quantum of supporting
evidence.” Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007) (quotation omitted).
the Court is not charged with reviewing the evidence and
making its own judgment as to whether Plaintiff is or is not
disabled. Rather, the Court’s inquiry is constrained to
the reasons asserted by the ALJ and the evidence relied upon
in support of those reasons. See Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). On appeal,
“issues which are not specifically and distinctly
argued and raised in a party’s opening brief are
waived.” Arpin v. Santa Clara Valley Trans.
Agency, 261 F.3d 912, 919 (9th Cir. 2001) (citing
Barnett v. U.S. Air., Inc., 228 F.3d 1105,
1110 n.1 (9th Cir. 2000) (en banc)); Bray v.
Comm’r of Soc. Sec., 554 F.3d 1219, 1226
n.7 (9th Cir. 2009) (applying the principle to an appeal from
a denial of benefits by the Social Security Commissioner).
The Ninth Circuit’s reasoning is that courts
“will not manufacture arguments for an appellant, and a
bare assertion does not preserve a claim.” Id.
Definition of Disability
qualify for disability benefits under the Social Security
Act, a claimant must show that, among other things, she is
“under a disability.” 42 U.S.C. §
423(a)(1)(E). The Social Security Act defines
“disability” as the “inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A).
person is “under a disability only if his physical or
mental impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in
the national economy.” 42 U.S.C. § 423(d)(2)(A).
The Five-Step Evaluation Process
evaluate a claim of disability, the Social Security
regulations set forth a five-step sequential process. 20
C.F.R. § 404.1520(a)(4); see also Reddick, 157
F.3d at 721. A finding of “not disabled” at any
step in the sequential process will end the inquiry. 20
C.F.R. § 404.1520(a)(4). The claimant bears the burden
of proof at the first four steps, but the burden shifts to
the Commissioner at the final step. Reddick, 157
F.3d at 721. The five steps are as follows:
First, the ALJ determines whether the claimant is
“doing substantial gainful activity.” 20 C.F.R.
§ 404.1520(a)(4)(i). If so, the claimant is not
the claimant is not gainfully employed, the ALJ next
determines whether the claimant has a “severe medically
determinable physical or mental impairment.” 20 C.F.R.
§ 404.1520(a)(4)(ii). To be considered severe, the
impairment must “significantly limit [the
claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1520(c). Basic work
activities are the “abilities and aptitudes to do most
jobs, ” such as lifting, carrying, reaching,
understanding, carrying out and remembering simple
instructions, responding appropriately to co-workers, and
dealing with changes in routine. 20 C.F.R. §
404.1521(b). Further, the impairment must either have lasted
for “a continuous period of at least twelve months,
” be expected to last for such a period, or be expected
“to result in death.” 20 C.F.R. § 404.1509
(incorporated by reference in 20 C.F.R. §
404.1520(a)(4)(ii)). The “step-two inquiry is a de
minimis screening device to dispose of groundless
claims.” Smolen v. Chater, 80 F.3d 1273, 1290
(9th Cir. 1996). If the claimant does not have a severe
impairment, then the claimant is not disabled.
Having found a severe impairment, the ALJ next determines
whether the impairment “meets or equals” one of
the impairments listed in the regulations. 20 C.F.R. §
404.1520(a)(4)(iii). If so, the claimant is found disabled
without further inquiry. If not, before proceeding to the
next step, the ALJ will make a finding regarding the
claimant’s “residual functional capacity based on
all the relevant medical and other evidence in [the] case
record.” 20 C.F.R. § 404.1520(e). A
claimant’s “residual functional capacity”
(“RFC”) is the most he can still do despite all
his impairments, including those that are not severe, and any
related symptoms. 20 C.F.R. § 404.1545(a)(1).
step four, the ALJ determines whether, despite the
impairments, the claimant can still perform “past
relevant work.” 20 C.F.R. § 404.1520(a)(4)(iv). To
make this determination, the ALJ compares its “residual
functional capacity assessment . . . with the physical and
mental demands of [the claimant’s] past relevant
work.” 20 C.F.R. § 404.1520(f). If the claimant
can still perform the kind of work he previously did, the
claimant is not disabled. Otherwise, the ALJ proceeds to the
the final step, the ALJ determines whether the claimant
“can make an adjustment to other work” that
exists in the national economy. 20 C.F.R. §
404.1520(a)(4)(v). In making this determination, the ALJ
considers the claimant’s “residual functional
capacity” and his “age, education, and work
experience.” 20 C.F.R. § 404.1520(g)(1). If the
claimant can perform other work, he is not disabled. If the
claimant cannot perform other work, he will be found
evaluating the claimant’s disability under this
five-step process, the ALJ must consider all evidence in the
case record. See 20 C.F.R. § 404.1520(a)(3); 20
C.F.R. § 404.1520b. This includes medical opinions,
records, self-reported symptoms, and third-party reporting.
See 20 C.F.R. § 404.1527; 20 C.F.R. §
404.1529; SSR 06-3p, 71 Fed. Reg. 45593-03.
The ALJ’s Evaluation Under the Five-Step
found that Plaintiff had not engaged in substantial gainful
activity since May 17, 2011, and that she possessed a number
of severe impairments,  satisfying the first and second steps
of the inquiry. (Doc. 10-3 at 28-29). At step three, the ALJ
found that Plaintiff’s impairment or combination of
impairments did not meet or medically equal any of the listed
impairments in the Social Security regulations that
automatically result in a finding of disability.
to moving on to step four, the ALJ conducted an RFC
determination in light of proffered testimony and objective
medical evidence. (Doc. 10-3 at 30-39). The ALJ found that
Plaintiff “has the residual capacity to perform light
work as defined in 20 C.F.R. 404.1567(b) and 416.967(b)
except [Plaintiff] should never climb ladders, ropes, and
scaffolds, ” and she “should avoid concentrated
exposure to dangerous [items] with moving mechanical parts
and unprotected heights.” (Id. at 30). The ALJ
further found that Plaintiff “retains the ability to
perform unskilled to semi-skilled tasks with only occasional
interaction with the public, co-workers, and
supervisors.” (Id.). At step four, the ALJ
found that Plaintiff was “unable to perform past
relevant work.” (Id. at 39).
the ALJ determined at step five that based on
Plaintiff’s age, education, work experience, and RFC,
Plaintiff could perform significant numbers of jobs existing
in the national economy. (Doc. 10-3 at 39.).
Consequently, the ALJ found that Plaintiff was not disabled
under the Social Security Act.
makes two arguments in support of her contention that the
Court should set aside the ALJ’s decision.
Specifically, Plaintiff asserts that the ALJ erred in (1)
finding that Plaintiff was not entirely credible as a
witness, and (2) by ...