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Sells v. Commissioner of Social Security Administration

United States District Court, D. Arizona

July 26, 2017

Sean Sells, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          James A. Teilborg Senior United States District Judge.

         Pending 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 appeal.

         I. BACKGROUND

         A. Procedural Background

         Plaintiff filed for disability insurance benefits on August 31, 2012, alleging disability as of February 10, 2010. (Tr. 26; Doc. 15 at 1-2).[1] 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).

         B. Plaintiff's Background

         Plaintiff 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).


         The 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).

         “The 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).

         The ALJ 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).

         Notably, 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).

         A. Definition of Disability

         To 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 economy.

Id. § 423(d)(2)(A).

         B. Five-Step Evaluation Process

         The 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 disabled.
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. § 404.1545(a)(1).
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.

         In 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).

         C. The ALJ's Evaluation under the Five-Step Process

         At step 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).

         Before 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).

         III. ANALYSIS

         Plaintiff 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.

         A. Whether the ALJ Properly Considered Dr. Robert Briggs's Evaluation

         Plaintiff 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).

         1. Legal Standard

         With 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.

         An “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 ...

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