United States District Court, D. Arizona
Honorable John Z. Boyle United States Magistrate Judge.
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
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 16.)
Plaintiff's application was initially denied on May 2,
2014, and denied upon reconsideration on December 10, 2014.
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.)
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.)
Standard of Review
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).
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).
The ALJ's Five-Step Evaluation Process
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
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).
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).
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.)
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
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.)
Severe Mental Impairment
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
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).
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).
The ALJ erred in finding Plaintiff's mental ...