United States District Court, D. Arizona
V. WAKE SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
25, 2011, Lowe's terminated Plaintiff's
employment. 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. 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.
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
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). 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).
FIVE-STEP SEQUENTIAL EVALUATION PROCESS
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).
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.
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.
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
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.
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 ...