United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Plaintiff Sean Sells's appeal from
the Social Security Commissioner's (the
“Commissioner's”) partial denial of his
application for disability insurance benefits and
Supplemental Security Income (“SSI”) under the
Social Security Act. Plaintiff argues that the administrative
law judge (“ALJ”) erred by: (1) providing an
insufficient basis for rejecting Dr. Robert A. Briggs's
neuropsychological evaluation; (2) finding Plaintiff's
testimony to be non-credible without providing clear and
convincing reasons, supported with substantial evidence; (3)
failing to completely review the record; (4) failing to
consider the State of Arizona's finding that Plaintiff is
seriously mentally ill (“SMI”); and (5) providing
an insufficient basis for rejecting licensed clinical social
worker (“LCSW”) Eileen Ripsin's opinions.
(Doc. 15 at 1, 23-24). The Court now rules on Plaintiff's
filed for disability insurance benefits on August 31, 2012,
alleging disability as of February 10, 2010. (Tr. 26; Doc. 15
at 1-2). He also filed a concurrent application for
SSI under Title XVI of the Social Security Act. The ALJ held
a hearing in February 2015, in which both Plaintiff and a
Vocational Expert (the “VE”) testified. (Tr.
49-79). The ALJ issued a decision finding Plaintiff not
disabled. (Tr. 26-46). In October 2016, the Appeals Council
denied Plaintiff's request for review, making the
ALJ's decision to deny benefits the Commissioner's
final decision. (Tr. 1-5).
was born on March 4, 1965. (Tr. 38, 81). He has 157 college
credits, but he did not graduate from college. (Tr. 434). His
subsequent employment included work as a directory assistant,
survey taker, and telemarketer. (Tr. 72).
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 marks 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 [her] findings, the ALJ is
entitled to draw inferences logically flowing from the
evidence.” Gallant, 753 F.2d at 1453
(citations omitted); see also 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 marks omitted).
the Court is not charged with reviewing the evidence and
making its own judgment as to whether a 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).
Definition of Disability
qualify for disability benefits under the Social Security
Act, a claimant must show that, among other things, he is
“under a disability.” 42 U.S.C. §
423(a)(1)(E) (2012). The Social Security Act defines
“disability” as the “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.” Id. § 423(d)(1)(A). 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
Id. § 423(d)(2)(A).
Five-Step Evaluation Process
Social Security Regulations (the “SSRs”) set
forth a five-step sequential process for evaluating
disability claims. 20 C.F.R. § 404.1520(a)(4) (2016);
see also Reddick, 157 F.3d at 721. A finding of
“not disabled” at any step in the sequential
process will end the inquiry. 20 C.F.R. §
404.1520(a)(4). The claimant bears the burden of proof at the
first four steps, but the burden shifts to the Commissioner
at the final step. Reddick, 157 F.3d at 721. The
five steps are as follows:
1. First, the ALJ determines whether the claimant is
“doing substantial gainful activity.” 20 C.F.R.
§ 404.1520(a)(4)(i). If so, the claimant is not
2. If the claimant is not gainfully employed, the ALJ next
determines whether the claimant has a “severe medically
determinable physical or mental impairment.”
Id. § 404.1520(a)(4)(ii). To be considered
severe, the impairment must “significantly limit [the
claimant's] physical or mental ability to do basic work
activities.” Id. § 404.1520(c). Basic
work activities are the “abilities and aptitudes to do
most jobs, ” such as lifting, carrying, reaching,
understanding, carrying out and remembering simple
instructions, responding appropriately to co-workers, and
dealing with changes in routine. Id. §
404.1521(b). Further, the impairment must either have lasted
for “a continuous period of at least twelve months,
” be expected to last for such a period, or be expected
“to result in death.” Id. §
404.1509 (incorporated by reference in 20 C.F.R. §
404.1520(a)(4)(ii)). The “step-two inquiry is a de
minimis screening device to dispose of groundless
claims.” Smolen v. Chater, 80 F.3d 1273, 1290
(9th Cir. 1996). If the claimant does not have a severe
impairment, then the claimant is not disabled.
3. Having found a severe impairment, the ALJ next determines
whether the impairment “meets or equals” one of
the impairments listed in the regulations. 20 C.F.R. §
404.1520(a)(4)(iii). If so, the claimant is found disabled
without further inquiry. If not, before proceeding to the
next step, the ALJ will make a finding regarding the
claimant's “residual functional capacity
[“RFC”] based on all the relevant medical and
other evidence in [the] case record.” Id.
§ 404.1520(e). A claimant's RFC is the most he can
still do despite all his impairments, including those that
are not severe, and any related symptoms. Id. §
4. At step four, the ALJ determines whether, despite the
impairments, the claimant can still perform “past
relevant work.” Id. § 404.1520(a)(4)(iv).
To make this determination, the ALJ compares his RFC
“assessment . . . with the physical and mental demands
of [the claimant's] past relevant work.”
Id. § 404.1520(f). If the claimant can still
perform the kind of work he previously did, the claimant is
not disabled. Otherwise, the ALJ proceeds to the final step.
5. At the final step, the ALJ determines whether the claimant
“can make an adjustment to other work” that
exists in the national economy. Id. §
404.1520(a)(4)(v). In making this determination, the ALJ
considers the claimant's RFC and his “age,
education, and work experience.” Id. §
404.1520(g)(1). If the claimant can perform other work, he is
not disabled. If the claimant cannot perform other work, he
will be found disabled.
evaluating the claimant's disability under this five-step
process, the ALJ must consider all evidence in the case
record. See Id. §§ 404.1520(a)(3),
404.1520b. This includes medical opinions, records,
self-reported symptoms, and third-party reporting. See
Id. §§ 404.1527, 404.1529; SSR 06-3P, 71 Fed.
Reg. 45593-97 (Aug. 9, 2006).
The ALJ's Evaluation under the Five-Step Process
one of the sequential evaluation process, the ALJ found that
Plaintiff did not engage in substantial gainful activity
since his alleged onset date. (Tr. 29). At step two, the ALJ
concluded that Plaintiff had the following severe
impairments: “obstructive sleep apnea, obesity, major
depressive disorder, generalized anxiety disorder, and
personality disorder.” (Tr. 29-30). At step three, the
ALJ determined that Plaintiff's mental and physical
impairments did not meet or equal any of the listed
impairments in the SSRs. (Tr. 30-32).
moving on to step four, the ALJ conducted a RFC determination
in light of Plaintiff's testimony and the objective
medical evidence. (Tr. 33-38). The ALJ found that Plaintiff
had the RFC, during the period of January 25, 2006 to
December 1, 2009, to:
perform a full range of work at all exertional levels but
with the following non-exertional limitations: He can never
climb ladders, ropes, or scaffolds. He should avoid
concentrated exposure to nonweather related extreme cold,
dangerous machinery with moving mechanical parts, and
unprotected heights that are high or exposed. He should avoid
concentrated exposure to toxic or caustic chemicals, poorly
ventilated areas, and pulmonary irritants such as fumes,
odors, dusts, and gases. He can perform work where only
occasional simple decision-making is required and work with
only occasional routine changes in the work environment. He
can have minimal interaction with the public, coworkers, and
supervisors, but can still work in the vicinity of others. He
can work with things, not data or people.
(Tr. 33). At step four, the ALJ found that Plaintiff could
not perform any past relevant work. (Tr. 38). Finally, the
ALJ concluded at step five that, based on Plaintiff's
RFC, age, education, and work experience, Plaintiff could
perform a significant number of jobs existing in the national
economy. (Tr. 39). Consequently, the ALJ found that Plaintiff
was not disabled under the Social Security Act during the
period beginning on February 10, 2010 and ending on April 27,
2015. (Tr. 40, 41).
makes four arguments for why the Court should reverse the
ALJ's decision. Specifically, Plaintiff asserts that the
ALJ committed the following errors: (1) failing to
“mention, consider, evaluate, or provide any reason for
rejecting examining specialist, Robert Briggs's . . .
neuropsychological evaluation, ” (Doc. 15 at 15-17);
(2) rejecting Plaintiff's credibility without clear and
convincing reasons for doing so, (id. at 17-21); (3)
failing to completely review the record, (id. at
21-22); (4) failing to consider a State of Arizona finding
that Plaintiff is SMI while rejecting the third-party
evidence, (id. at 22-23); and (5) rejecting LCSW
Eileen Ripsin's opinion without providing “specific
reasons, germane to” Ms. Ripsin, (id. at
23-24). The Court will now address each argument in turn.
Whether the ALJ Properly Considered Dr. Robert Briggs's
first argues that the ALJ erred when she failed to consider
or mention Dr. Briggs's neuropsychological evaluation.
(Id. at 15). The Commissioner rejoins that the ALJ
considered Dr. Briggs's neuropsychological evaluation,
and, alternatively, any lack of consideration by the ALJ was
harmless error. (Doc. 16 at 3-8).
respect to medical testimony, the Ninth Circuit Court of
Appeals (the “Ninth Circuit”) distinguishes
between the opinions of three types of physicians: (1) those
who treat the claimant (“treating physicians”);
(2) those who examine but do not treat the claimant
(“examining physicians”); and (3) those who
neither examine nor treat the claimant (“non-examining
physicians”). Lester v. Chater, 81 F.3d 821,
830-31 (9th Cir. 1995). As a general rule, the opinion of an
examining physician is entitled to greater weight than the
opinion of a non-examining physician, but less than a
treating physician. Andrews, 53 F.3d at 1040-41.
“ALJ must consider all medical opinion evidence.”
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008) (citing 20 C.F.R. § 404.1527(b) (2007)). Although
an ALJ “is not bound by an expert medical opinion on
the ultimate question of disability, she must provide
‘specific and legitimate' reasons for rejecting the
opinion” of an examining physician. Id.;
see also Lester, 81 F.3d at 830 (“And like the
opinion of a treating doctor, the opinion of an examining
doctor, even if contradicted by another doctor, can only be
rejected for specific and legitimate reasons that are
supported by substantial evidence in the record.”).
This burden is satisfied where an ALJ sets out “a