United States District Court, D. Arizona
Honorable Lynette C. Kmimins United States Magistrate Judge.
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.
AND PROCEDURAL HISTORY
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.)
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.)
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.)
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),
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).
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.
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. §§
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 ...