United States District Court, D. Arizona
A. Teilbrorg Senior United States District Judge.
before the Court is Plaintiff Alma Casas's appeal from
the Social Security Commissioner's (the
“Commissioner's”) denial of her request for
expedited reinstatement of disability insurance benefits
under Title II of the Social Security Act. (Tr. 24-40).
Plaintiff argues that the administrative law judge (the
“ALJ”) erred by: (1) applying the wrong legal
framework; (2) presuming Plaintiff engaged in substantial
gainful activity (“SGA”); (3) finding
Plaintiff's impairments had medically improved; (4)
inappropriately weighing medical testimony; (5)
inappropriately weighing Plaintiff's credibility; and (6)
violating Plaintiff's due process rights. (See
Docs. 16; 22). The Court now rules on Plaintiff's
filed an application for Period of Disability and Disability
Insurance Benefits on September 11, 2002, alleging an
inability to work since August 19, 2002. (Tr. 262). In
October 2003, ALJ Gerald R. Cole (“ALJ Cole”)
determined Plaintiff was disabled due to a gunshot wound to
her right femur, resulting in a fracture, vascular injury,
and pain. (Tr. 264-65).
point during or before 2011, the Social Security
Administration (“SSA”) terminated Plaintiff's
disability benefits. (Doc. 16 at 7). On November 3, 2011,
Plaintiff requested expedited reinstatement of her benefits.
(Tr. 272). In 2012, the SSA conducted a continuing disability
review and determined that Plaintiff's disability had
ceased on November 14, 2011. (Tr. 27, 267, 271).
Specifically, the SSA concluded that “current medical
evidence shows that [Plaintiff's] leg has healed”
and “there has been medical improvement when comparing
the severity of [Plaintiff's] impairment at the time of
the most recent favorable decision to the severity of
[Plaintiff's] impairment now.” (Tr. 271). On July
9, 2012, the SSA denied Plaintiff's request for
reinstatement of her benefits. (Tr. 279). Plaintiff's
request for reconsideration, (Tr. 282), was denied, and
Plaintiff requested a hearing by an ALJ, stating that she was
“entitled to ongoing disability benefits.” (Tr.
2, 2014, five days before Plaintiff's scheduled hearing
before the ALJ, Plaintiff's former counsel withdrew from
her case. (Tr. 298). At the hearing, Plaintiff appeared
without representation of counsel. (Tr. 609, 612-13). The ALJ
advised Plaintiff that she would grant a postponement if
Plaintiff wanted to retain counsel. (Tr. 612). When Plaintiff
voiced her trepidation in waiving her right to counsel, the
ALJ told her, “[I]f you're unsure, take the time to
find somebody.” (Tr. 613). Nevertheless, Plaintiff
waived her right to counsel. (Tr. 613). The ALJ issued an
unfavorable decision, (Tr. 24), and the Appeals Council
denied Plaintiff's request for review, (Tr. 5). This
timely request for judicial review followed.
Continuing Disability Review
order to determine whether a claimant's disability is
continuing or has ceased, and, therefore, whether the
claimant is still entitled to disability benefits, ALJs are
required to follow an eight-step process. See 20
C.F.R. § 404.1594(f).
one, the ALJ determines whether the claimant is engaged in
SGA. Id. § 404.1594(f)(1). SGA is defined as
work activity that is both substantial and gainful.
Id. § 404.1572. “Substantial work
activity” is work activity that involves doing
significant physical or mental activities. Id.
§ 404.1572(a). “Gainful work activity” is
work that is usually done for pay or profit, whether or not a
profit is realized. Id. § 404.1572(b). If the
claimant has engaged in SGA, the claimant's disability is
deemed to have ceased and benefits are terminated.
Id. § 404.1594(f)(1). If the claimant is not
engaging in SGA, the analysis proceeds to step two.
two, the ALJ analyzes whether the claimant's impairment
meets or equals the impairments set out in the Listing of
Impairments found in 20 C.F.R. Part 404, Subpart P, Appendix
1. Id. § 404.1594(f)(2). If a Listing is met,
the claimant continues to be disabled, and the evaluation
stops. Id. If not, the analysis proceeds to step
three, the ALJ evaluates whether medical improvement has
occurred since the original determination of disability.
Id. § 404.1594(f)(3). If a medical improvement
resulted in a decrease in the medical severity of the
claimant's impairments, the analysis proceeds to the next
step. If no medical improvement occurred, the analysis skips
to step five. Id.
four, the ALJ determines whether the medical improvement is
related to the claimant's ability to work. Id.
§ 404.1594(f)(4). Medical improvement is related to the
ability to work if it results in an increase in the
claimant's capacity to perform basic work activities.
Id. If the improvement is related, the analysis
skips to step six. Id. However, if the improvement
is not related, the analysis proceeds to step five.
five applies in one of the follow situations: (1) there has
been no medical improvement; or (2) the improvement is
unrelated to the claimant's ability to work. Id.
§ 404.1594(f)(3)-(4). At step five, the ALJ analyzes
whether any exception to medical improvement exists.
Id. § 404.1594(f)(5). If no exception applies
to the claimant, the ALJ must still find the claimant to be
disabled. Id. If the first group of exceptions
applies to the claimant, see Id. § 404.1594(d),
the analysis advances to step six, id. If the second
group of exceptions applies to the claimant, see Id.
§ 404.1594(e), the ALJ will find that the claimant's
disability has ended, id. § 404.1594(f)(5).
six, the ALJ evaluates whether the claimant's impairments
are sufficiently severe to limit her physical or mental
abilities to do basic work activities. Id. §
404.1594(f)(6). If the impairments are not sufficiently
severe, the claimant is no longer disabled. Id.
Otherwise, the analysis proceeds to step seven. Id.
seven, the ALJ assesses the claimant's current residual
functioning capacity (“RFC”) to determine whether
she can perform past related work. Id. §
404.1594(f)(7). If the claimant has the capacity to perform
past relevant work, the claimant is no longer disabled.
Id. If not, the analysis proceeds to step eight.
at step eight, the ALJ determines whether the claimant can
perform any other SGA. Id. § 404.1594(f)(8). If
so, the claimant is no longer disabled. Id. If not,
the claimant's disability continues. Id.
Summary of the ALJ's Decision
stated that the issue before her was whether Plaintiff was
entitled to expedited reinstatement of benefits. (Tr. 28).
The ALJ set forth the applicable test for expedited
reinstatement of benefits under 20 C.F.R. §§
404.1592b & 404.1592c, and she elaborated that one of the
steps for reinstatement required a continuing disability
review. (Tr. 28-29).
began her findings by determining that the most recent
favorable decision finding Plaintiff disabled-the comparison
point decision (“CPD”)-was October 3, 2003. (Tr.
29). The ALJ also determined that at the time of the CPD,
Plaintiff's medically determinable impairments consisted
of a right lower extremity gunshot wound and fracture. (Tr.
29). The ALJ then proceeded through the sequential analysis
for continuing disability review. (Tr. 29-39).
one, the ALJ found that the claimant did not engage in SGA
through November 14, 2011, the date the ALJ determined
Plaintiff's disability ended. (Tr. 29). At step two, the
ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or equaled the severity
of impairments listed in the regulations. (Tr. 31). At step
three, the ALJ found Plaintiff experienced medical
improvement since November 14, 2011; and, at step four, she
noted that the improvement was related to Plaintiff's
ability to work-rendering step five inapplicable. (Tr. 32).
six, the ALJ found that Plaintiff's impairments of a
right lower extremity gunshot wound and fracture were severe
impairments that cause more than minimal functional
impairments. (Tr. 29). The ALJ also found at step six that
Plaintiff's additional complaints of high cholesterol,
acid reflux disease/gastroesophageal reflux disease, vitamin
D deficiency, diabetes, headaches, irritable bowel syndrome,
colitis, neuropathy, fibromyalgia, asthma, chronic
obstructive pulmonary disease, carpal tunnel syndrome, and
depression did not constitute severe medically determinable
impairments because they presented only transient and mild
limitations or were well controlled with treatment. (Tr.
seven, the ALJ found that, as of November 14, 2011, Plaintiff
had the RFC to perform light work activity. (Tr. 32). The
additional limitations found by the ALJ were that Plaintiff
must avoid concentrated exposure to dangerous machinery with
moving and mechanical parts and unprotected high and exposed
heights. (Tr. 32). In carrying out the remainder of step
seven, the ALJ found Plaintiff was capable of performing her
past relevant work as a surgical attendant and hotel
housekeeper; thus, the ALJ did not proceed to step eight.
(Tr. 39). Based on these findings, the ALJ concluded that
Plaintiff's disability ended on November 14, 2011, and,
consequently, Plaintiff was not entitled to reinstatement of
benefits. (Tr. 39).
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) (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).
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) (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
(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 also 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, 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) (quotation omitted).
the Court is not charged with reviewing the evidence and
making its own judgment as to whether Plaintiff is or is not
disabled. 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 Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).
makes six broad arguments for why the Court should either
reverse the ALJ's decision or remand the case for a new
administrative hearing. Specifically, Plaintiff asserts that
the ALJ committed the following errors: (1) applying an
erroneous legal framework on review, (Doc. 16 at 8-13); (2)
presuming Plaintiff engaged in SGA, (Docs. 16 at 12-15; 22 at
1-2); (3) finding Plaintiff experienced medical improvement,
(Doc. 16 at 15-20); (4) inappropriately weighing medical
opinion evidence, (Docs. 16 at 20-24; 22 at 4-9); (5) finding
Plaintiff was not entirely credible, (Docs. 16 at 26-28; 22
at 3); and (6) violating Plaintiff's due process rights
during the hearing, (Docs. 16 at 24-26; 22 at 9-11). The
Court will now address each argument in turn.
Applicable Legal Framework
requested a hearing before the ALJ, arguing she was
“entitled to ongoing [d]isability benefits.” (Tr.
283). The ALJ applied the review standard set forth in 20
C.F.R. §§ 404.1592b & 404.1592c, which includes
an analysis of whether Plaintiff is still disabled under 20
C.F.R. § 404.1594. (Tr. 28-29). Plaintiff argues that
the ALJ erred in two respects: (1) failing to apply the
standard set forth in 42 U.S.C. § 423(f) for reviewing a
decision to terminate disability benefits; and (2) presuming
Plaintiff was not disabled. (Doc. 16 at 8-13).
first argument, that the ALJ should have applied the 42
U.S.C. § 423(f) standard of review, is contradicted by
record. Section 423(f) applies when reviewing whether to
terminate a claimant's entitlement to disability
benefits. 42 U.S.C. § 423(f). However, Plaintiff
requested review of the SSA's decision denying
reinstatement of benefits. (See Tr. 279).
Thus, the ALJ was correct to apply the standard set forth in
20 C.F.R. §§ 404.1592b & 404.1592c.
next argues that, by using the expedited reinstatement review
standard instead of the continuing disability review
standard, the ALJ erred by presuming Plaintiff was not
disabled. (Doc. 16 at 9-13). Plaintiff premises this argument
on the assertion that Plaintiff “appealed both the
continuing disability review process and expedited
reinstatement denial.” (Doc. 16 at 9). The Court cannot
find-and Plaintiff fails to cite- anywhere in the record that
states the bases for Plaintiff's hearing request in such
clear terms. Plaintiff's request for a hearing simply
states that she disagreed with the SSA determination because
she was “entitled to ongoing [d]isability
benefits.” (Tr. 283). This is the same argument
Plaintiff used in requesting reconsideration of the SSA's
denial of reinstatement of Plaintiff's benefits. (Tr.
Plaintiff properly appealed the SSA's continuing
disability review determination, the ALJ applied the
continuing disability review standard in her decision. (Tr.
29-39). In applying this standard, the ALJ relied on
objective evidence in the record before determining medical
improvement. (Tr. 29-39). Thus, in reviewing whether
Plaintiff's disability was ongoing, the ALJ appeared to
presume Plaintiff was still disabled. (Tr. 29-31). Plaintiff
fails to state how the ALJ's analysis was erroneous or
even how such an erroneous analysis constituted harmful
error. McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir.
2011) (“Where harmfulness of the error is not apparent
from the circumstances, the party seeking reversal must
explain how the error caused harm.”). Because Plaintiff
neglected to specify where exactly in the ALJ's opinion
the ALJ presumed non-disability-or what harm arose from such
presumption-Plaintiff cannot establish that this case should
be remanded for further proceedings on this basis.
Presumption of SGA
next argues that the ALJ committed harmful error by presuming
Plaintiff engaged in SGA. (See Docs. 16 at 12-14; 22
at 1-2). In addition, Plaintiff somewhat relatedly argues
that the ALJ erred by considering Plaintiff's work
activity despite such work activity failing to amount to SGA.
(Doc. 22 at ...