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Osborn v. Commissioner of Social Security Administration

United States District Court, D. Arizona

March 31, 2017

Jan Osborn, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          Honorable John Z. Boyle United States Magistrate Judge.

         Plaintiff Jan Osborn seeks review of the Social Security Administration Commissioner's decision denying her application for benefits under the Social Security Act. (Doc. 21; Doc. 26.) For the reasons below, the Court will remand this matter for further proceedings.

         I. Background

         On December 30, 2013, Plaintiff filed a Title II application for a period of disability and disability insurance benefits, alleging an onset date of January 1, 2012. (AR[1] 16.) Plaintiff's application was initially denied on May 2, 2014, and denied upon reconsideration on December 10, 2014. (Id.)

         Pursuant to Plaintiff's request, a hearing was held on June 9, 2015, before Administrative Law Judge (ALJ) Carla L. Waters. (Id.) In a decision dated July 31, 2015, the ALJ ruled Plaintiff is not entitled to disability benefits because she is “not disabled under sections 216(i) and 223(d) of the Social Security Act.” (Id. at 24.) On September 24, 2015, the Appeals Council denied Plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner of the Social Security Administration. (Id. at 1-3.)

         Having exhausted the administrative review process, on November 25, 2015, Plaintiff sought judicial review of the ALJ's decision by filing a Complaint in this Court pursuant to 42 U.S.C. § 405(g). (Doc. 1.) On July 27, 2016, Plaintiff filed an Opening Brief, seeking remand of this case to the Social Security Administration for an award of benefits or, in the alternative, for further proceedings. (Doc. 21.) On September 26, 2016, Defendant filed a Response Brief in support of the Commissioner's decision. (Doc. 25.) On October 11, 2016, Plaintiff filed a Reply Brief. (Doc. 26.)

         II. Legal Standards

         a. Standard of Review

         The Social Security Act, 42 U.S.C. § 405(g), provides for judicial review of the Commissioner's disability benefits determinations. The 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); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). “‘Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007); see also Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).

         In determining whether substantial evidence supports the ALJ's decision, the Court considers the record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusions. Reddick, 157 F.3d at 720; Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). The ALJ is responsible for resolving conflicts, ambiguity, and determining credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Court “must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation.” Andrews, 53 F.3d at 1039. “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.'” Orn, 495 F.3d at 630 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). The 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). Similarly, the Court reviews “only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).

         b. The ALJ's Five-Step Evaluation Process

         To be eligible for Social Security benefits, a claimant must show an “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); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 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 ALJ follows a five-step evaluation process to determine whether an applicant is disabled under the Social Security Act:

The five-step process for disability determinations begins, at the first and second steps, by asking whether a claimant is engaged in “substantial gainful activity” and considering the severity of the claimant's impairments. See 20 C.F.R. § 416.920(a)(4)(i)-(ii). If the inquiry continues beyond the second step, the third step asks whether the claimant's impairment or combination of impairments meets or equals a listing under 20 C.F.R. pt. 404, subpt. P, app. 1 and meets the duration requirement. See Id . § 416.920(a)(4)(iii). If so, the claimant is considered disabled and benefits are awarded, ending the inquiry. See Id . If the process continues beyond the third step, the fourth and fifth steps consider the claimant's “residual functional capacity” [(RFC)] in determining whether the claimant can still do past relevant work or make an adjustment to other work. See Id . § 416.920(a)(4)(iv)-(v).

Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). “The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).

         Applying the five-step evaluation process, the ALJ found that Plaintiff is not disabled and is not entitled to benefits. (AR 16-24.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date through her last date insured. (Id. at 18.) At step two, the ALJ found that Plaintiff had the following severe impairments: status post breast cancer with bilateral mastectomies, anterior hypertrophic spurs of the lumbar and thoracic spine, asthma, peripheral neuropathy, and status post peripheral pulmonary embolism. (Id.) At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meet or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. (Id. at 20.)

         At step four, the ALJ found the following:

[Plaintiff] had the [RFC] to perform sedentary work as defined in 20 CFR § 404.1567(a) except she is able to stand and/or walk for a total of 6 hours in an 8-hour day. She can occasionally climb and balance; frequently kneel, crouch, and crawl. [Plaintiff] should avoid concentrated exposure to odors, dust, fumes, and gases.

(Id.) The ALJ further found that Plaintiff “was capable of performing past relevant work as an insurance sales agent and telephone solicitor. This work did not require the performance of work-related activities precluded by” Plaintiff's RFC. (Id. at 24.) Given that finding, the ALJ concluded that Plaintiff “was not under a disability, as defined in the Social Security Act, at any time from January 1, 2012, the alleged onset date, through December 31, 2014, the date last insured.” (Id.)

         III. Analysis

         Plaintiff argues that the ALJ's decision is defective for three reasons: (1) the ALJ erred in finding Plaintiff's mental impairments not severe at step two of the five-step analysis; (2) the ALJ improperly rejected the medical opinions of Plaintiff's treating physician; and (3) the ALJ improperly rejected Plaintiff's symptom testimony. The Court addresses each argument below. (Doc. 21.)

         a. Severe Mental Impairment

         i. Legal Standard

         Plaintiff argues that the ALJ erred in finding Plaintiff's mental impairments “not severe” at step two of the five-step analysis. (Id. at 10-15.) At step two, the ALJ considers the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(a)(4)(ii). To find the claimant's impairment severe, the impairment or combination of impairments 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 include: physical functions; capacities for seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b)(1)-(6). An impairment is “not severe” only if the evidence establishes a slight abnormality with minimal effect on the individual's ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The step-two inquiry is a de minimis screening device to dispose of groundless claims. Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987).

         Importantly, the inquiry “is to do no more than allow the [Social Security Administration] to deny benefits summarily to those applicants with impairments of a minimal nature which could never prevent a person from working.” SSR 85-28, 1985 WL 56856 (internal quotations omitted). “‘[I]f an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation should not end with the not severe evaluation step.'” Id. Further, the ALJ “is required to consider the claimant's subjective symptoms, such as pain or fatigue, in determining severity.” Smolen, 80 F.3d at 1273 (citing SSR 88-13). Thus, the Court's task in reviewing a non-severe finding at step two is to “determine whether the ALJ had substantial evidence to find that the medical evidence clearly established that [Plaintiff] did not have a medically severe impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005).

         The ALJ uses a “special technique” to evaluate medically determinable mental impairments at each level of the administrative review process. 20 C.F.R. § 404.1520a. The ALJ must rate the degree of claimant's functional limitations resulting from the impairment. 20 C.F.R. § 404.1520a(c)(1). Rating the degree of functional limitation is a “complex and highly individualized process.” Id. There are four broad functional areas to rate a claimant's degree of limitation: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3). The degree of limitation is rated on a five point scale: none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). The degree of functional limitation resulting from the impairment determines the severity of the claimant's mental impairment. 20 C.F.R. § 404.1520a(d). The ALJ will generally conclude the claimant's impairment is not severe if the ALJ finds that the degree of limitation in the first three areas as “none” or “mild, ” unless there is evidence to the contrary. 20 C.F.R. § 404.1520a(d)(1).

         ii. The ALJ erred in finding Plaintiff's mental ...


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