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Rhodus v. Berryhill

United States District Court, D. Arizona

September 18, 2017

Willie Douglas Rhodus, Plaintiff,
v.
Nancy A. Berryhill, Defendant.

          ORDER

          Honorable Lynette C. Kmimins United States Magistrate Judge.

         Plaintiff Willie Rhodus filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). (Doc. 1.) Before the Court are Rhodus's Opening Brief and Defendant's Brief. (Docs. 18, 19.) The parties have consented to Magistrate Judge jurisdiction. (Doc. 10.) Based on the pleadings and the administrative record submitted to the Court, the Commissioner's decision is affirmed.

         FACTUAL AND PROCEDURAL HISTORY

         Rhodus filed an application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on August 29, 2012. (Administrative Record (AR) 175.) He alleged disability from January 1, 2009. (Id.) Rhodus's application was denied upon initial review (AR 45-74) and on reconsideration (AR 75-110). A hearing was held on July 16, 2014 (AR 22-44), after which the ALJ found that Rhodus was not disabled because he could perform his past relevant work (AR 9-17). The Appeals Council denied Rhodus's request to review the ALJ's decision. (AR 1.)

         Rhodus was born on November 14, 1950, making him 58 years of age at the onset date of his alleged disability. (AR 175.) From 1998 to 2009, Rhodus worked as an officer at an insurance company and as an investment advisor. (AR 190.)

         The ALJ found Rhodus had two severe impairments, degenerative joint disease (knees) and osteoarthritis. (AR 11.) The ALJ determined Rhodus had the Residual Functional Capacity (RFC) to perform sedentary work except he could sit for up to six hours and stand for up to two hours; lift/carry 10 pounds frequently; occasionally climb, balance, stoop, kneel, crouch, and crawl; and should avoid unprotected heights and dangerous machinery. (AR 14.) The ALJ concluded at Step Four, based on the testimony of a Vocational Expert, that Rhodus could perform his past work (as generally performed) as an investment representative or director of insurance. (AR 17.)

         STANDARD OF REVIEW

         The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing he (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

         “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “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, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).

         DISCUSSION

         Rhodus argues the ALJ erred in not finding his mental impairments severe at Step Two. Alternatively, Rhodus argues the ALJ erred in not evaluating the effect of his non-severe depression on his ability to work.

         Step Two

         Rhodus argues the ALJ failed to find, at Step Two, that his depression was a severe impairment. A finding of disability requires an “inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment.” 20 C.F.R. §§ 404.1505, 416.905. An impairment is “not severe if it does not significantly limit your physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1521, 416.921.

         The ALJ found that Rhodus had a medically determinable impairment of depressive disorder but concluded it was not severe because it did not cause “more than minimal limitation in the claimant's ability to perform basic mental work activities.” (AR 12.) In particular, the ALJ determined Rhodus had only mild limitations in ...


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