United States District Court, D. Arizona
A. Teilrorg, Senior United States District Judge.
before the Court is Plaintiff Patrick Dooley Harding's
("Plaintiff) appeal from the Social Security
Commissioner's ("Commissioner") denial of his
application for a period of disability, disability insurance
benefits, and Supplemental Security Income ("SSI")
under the Social Security Act, 42 U.S.C. §§ 416(1),
432, 1381 et seq. (2012).(Doc. 1 at 2). Plaintiff argues that the
Administrative Law Judge ("ALJ") erred in failing
to seek an updated medical opinion following the submission
of probative evidence, improperly rejecting the opinion of an
examining psychologist, and improperly assessing the
credibility of Plaintiff s allegations. (Doc. 15 at 1). The
Court now rules on Plaintiffs appeal.
parties are familiar with the background information in this
case, and it is summarized in the ALJ's decision.
(See Doc. 14-3 at 23-34). Accordingly, the Court
will reference the background only as necessary to the
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) (internal 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)
(internal citation omitted). In other words, substantial
evidence means "such relevant evidence as a reasonable
mind might accept as adequate to support [the ALJ's]
conclusion." Valentine v. Comm'r Soc. Sec.
Admin., 574 F.3d 685, 690 (9th Cir. 2009).
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) (internal
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 (internal 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 Cir. 1990).
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 and the
decision is free from legal error, 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) (2012). 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)
(internal quotation and citation omitted).
the Court is not charged with reviewing the evidence and
making its own judgment as to whether Plaintiff is or is not
disabled. See Connett v. Barnhart, 340 F.3d 871, 874
(9th Cir. 2003). 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
Id. 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.l
(9th Cir. 2000) (en banc), vacated and remanded on other
grounds, 535 U.S. 391 (2002)); see also Bray v.
Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7
(9th Cir. 2009) (applying the principle to Social Security
appeal). The Ninth Circuit's reasoning is that courts
"will not manufacture arguments for an appellant, and a
bare assertion does not preserve a claim."
Arpin, 26 IF.3d at 919 (internal citation omitted).
Definition of Disability
qualify for disability benefits under the Social Security
Act, a claimant must show that, among other things, he is
"under a disability." 42 U.S.C. § 423(a)(1)(E)
(2012). 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." Id. § 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." Id. § 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) (2016); 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 through the first four steps, but
the burden shifts to the Commissioner in the final step.
Reddick, 157 F.3d at 721. The five steps are as
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 disabled.
the claimant is not gainfully employed, the ALJ next
determines whether the claimant has a "severe medically
determinable physical or mental impairment."
Id. § 404.1520(a)(4)(h). To be considered
severe, the impairment must "significantly limit [the
claimant's] physical or mental ability to do basic work
activities." Id. § 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. Id. §
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." Id. § 404.1509
(incorporated by reference in 20 C.F.R. §
404.1520(a)(4)(h)). The "step-two inquiry is a de
minimis screening device to dispose of groundless
claims." Smolen v. Chafer, 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." Id. § 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. Id. § 404.1545(a)(1).
step four, the ALJ determines whether, despite the
impairments, the claimant can still perform "past
relevant work." Id. § 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." Id. § 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 final step.
the final step, the ALJ determines whether the claimant
"can make an adjustment to other work" that exists
in the national economy. Id. §
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." Id. § 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 Id. §§ 404.1520(a)(3),
404.1520b. This includes medical opinions, records,
self-reported symptoms, and third-party reporting.
See 20 C.F.R. §§ 404.1527, 404.1529;
SSR06-3p, 71 Fed. Reg. 45593-03 (Aug. 9, 2006).
The ALJ's Evaluation Under the Five-Step Process
found that Plaintiff had not engaged in substantial gainful
activity for at least twelve continuous months and that he
possessed several severe impairments,  satisfying the
first and second steps of the inquiry. (Doc. 14-3 at 26).
Under step three, the ALJ determined that Plaintiffs
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. (Id.)
to moving on to step four, the ALJ conducted an RFC
determination in light of proffered testimony and objective
medical evidence. (Id. at 28-29). The ALJ found that
Plaintiff "has the residual functional capacity to
perform medium work as defined in 20 C.F.R. 404.1567(c) and
416.967(b) except [Plaintiff] can frequently stoop and
occasionally balance, kneel, crouch, crawl and climb ramps or
stairs but never ladders, ropes or scaffolds."
(Id. at 28). Moreover, Plaintiff "can have
occasional exposure to hazards such as moving machinery or
unprotected heights." (Id.) The ALJ further
found that Plaintiff "can perform unskilled work tasks
that can be learned by demonstration with 30 days or less of
a simple repetitive routine nature. He can have occasional
superficial and incidental contact with the public and
occasional contact with supervisors or coworkers."
(Id.) Finally, the ALJ found that Plaintiff
"could do jobs with occasional decision making, changes
in the work setting, no fast-paced work and no strict
production quotas but could meet goals." (Id.)
four, the ALJ found that Plaintiff was "unable to
perform past relevant work." (Id. at 32).
Finally, the ALJ determined at step five that based on
Plaintiffs age, education, work experience, and RFC,
Plaintiff could perform significant numbers of jobs existing
in the national economy. (Id. at 34). Consequently,
the ALJ found that Plaintiff was not disabled under the
Social Security Act. (Id.)
asserts that the ALJ erred in denying him benefits for three
reasons: (1) the ALJ failed to seek an updated medical
opinion following the submission of probative evidence; (2)
the ALJ improperly rejected the opinion of an examining
psychologist; and (3) the ALJ improperly assessed the