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Venezia v. Colvin

United States District Court, D. Arizona

December 12, 2016

Susan Venezia, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          ORDER

          NEIL V. WAKE SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff Susan Venezia 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 under sections 216(i) and 223(d) 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 October 1950. She completed the equivalent of a high school education. From 1985 to 2000, Plaintiff worked as a pharmacy assistant. From October 2003 to July 2011, Plaintiff worked for Lowe's, designing and selling kitchen and bathroom countertops and sinks. On March 25, 2010, she was hospitalized for a hemorrhagic stroke, secondary to hypertension. She was discharged on March 27, 2010, in stable condition. A physical therapy evaluation found no need for further physical therapy or rehabilitation. At some point after her stroke, Plaintiff returned to work for approximately a year.

         On July 25, 2011, Lowe's terminated Plaintiff's employment.[1] For the next year, she received unemployment compensation and sought work as a retail clerk. In 2014, Plaintiff testified that the most serious health problems affecting her ability to work are fibromyalgia, headaches, and osteoporosis.[2] She is able to drive, shop, manage money, prepare simple meals, wash dishes, manage personal care, feed pets, watch television, and use a computer and electronic tablet.

         On December 28, 2011, Plaintiff applied for disability insurance benefits, alleging disability beginning July 25, 2011. On February 19, 2014, she appeared with her attorney and testified at a video hearing before the ALJ. A vocational expert also testified. On April 22, 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 February 4, 2016, Plaintiff sought review by this Court.

         II. STANDARD OF REVIEW

         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). 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. 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).

         III. FIVE-STEP SEQUENTIAL EVALUATION PROCESS

         To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

         At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a severe medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant's residual functional capacity, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.

         At step one, the ALJ found that Plaintiff meets the insured status requirements of the Social Security Act through September 30, 2016, and that she has not engaged in substantial gainful activity since July 25, 2011, the alleged onset date. The ALJ also found that Plaintiff received unemployment compensation in the fourth quarter of 2011 and in all four quarters of 2012. The ALJ found this to be inconsistent with a claim for disability because a claimant must certify that she is physically and mentally able, willing, and available to work to be eligible for unemployment compensation.

         At step two, the ALJ found that Plaintiff has the following medically determinable impairments: controlled hypertension, history of stroke March 25, 2010, migraines, asthma, obesity, borderline intellectual functioning, anxiety, and depression. The ALJ found that Plaintiff does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) her ability to perform basic work-related activities for 12 consecutive months. Therefore, at step two, the ALJ concluded that Plaintiff does not have a severe impairment or combination of impairments, and she is not disabled. By reaching this conclusion at step two, the ALJ was not required to assess Plaintiff's residual functional capacity, determine whether she is still capable of performing past relevant work, or determine whether Plaintiff has skills that are transferable to other work.

         IV. ANALYSIS

         At step two, the ALJ was required to determine whether Plaintiff has a severe medically determinable physical or mental impairment. An impairment or combination of impairments is not severe if it does not significantly limit a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a). “Basic work activities” means the abilities and aptitudes to do most jobs, such as walking, standing, sitting, seeing, hearing, etc. 20 C.F.R. § 404.1521(b). At step two, Plaintiff had the burden of proving she has impairments that significantly limit her ability to do basic work activities.

         Plaintiff contends that the evidence of record shows that her stroke, migraines, asthma, obesity, borderline intellectual functioning, anxiety, and depression significantly limit her ability to perform basic work activities. She further contends that the ALJ abused his discretion in concluding Plaintiff does not have a severe impairment or combination of impairments because he erred in ...


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