United States District Court, D. Arizona
David M. Betts, Plaintiff,
Commissioner of Social Security Administration, Defendant.
V. Wake, Senior United States District Judge.
David M. Betts seeks review under 42 U.S.C. § 405(g) of
the final decision of the Commissioner of Social Security
(“the Commissioner”), which denied him disability
insurance benefits and supplemental security income under
sections 216(i), 223(d), and 1614(a)(3)(A) of the Social
Security Act. Because the decision of the Administrative Law
Judge (“ALJ”) is supported by substantial
evidence and is not based on legal error, the
Commissioner's decision will be affirmed.
was born in April 1969. He graduated from college and later
obtained a mortgage broker's license and obtained a
certificate for boat brokering. He has worked as a manager at
a marina, a customer associate for an internet bank, a
property manager, general manager at a boat storage and
service business, a car salesman, and a boat broker.
Plaintiff stopped working in 2010 as a result of chronic back
pain that worsened as a result of an assault in 2002 and
another assault on September 7, 2010. Plaintiff testified
that standing or sitting upright causes him to experience
intense upper thoracic pain.
August 6, 2012, Plaintiff applied for a period of disability
and disability insurance benefits. On August 15, 2012,
Plaintiff applied for supplemental security income. In both
applications, Plaintiff alleges disability beginning
September 7, 2010. On June 2, 2014, he appeared with his
attorney and testified at a hearing before the ALJ. A
vocational expert also testified. On August 22, 2014, the ALJ
issued a decision that Plaintiff was not disabled within the
meaning of the Social Security Act. The Appeals Council
denied Plaintiff's request for review of the hearing
decision, making the ALJ's decision the
Commissioner's final decision. On May 23, 2016, Plaintiff
sought review by this Court.
STANDARD OF REVIEW
that are not actually argued in an appellant's opening
brief are not considered on appeal. Indep. Towers of
Washington v. Washington, 350 F.3d 925, 929 (9th Cir.
2003). Only issues that are argued specifically and
distinctly in a party's opening brief are reviewed.
Id. Moreover, “when claimants are represented
by counsel, they must raise all issues and evidence at their
administrative hearings to preserve them on appeal.”
Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir.
may set aside the Commissioner's disability determination
only if the determination is not supported by substantial
evidence or is based on legal error. Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007). Generally, when the
evidence is susceptible to more than one rational
interpretation, courts must uphold the ALJ's findings if
they are supported by inferences reasonably drawn from the
record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th
Cir. 2012). “Overall, the standard of review is highly
deferential.” Rounds v. Comm'r Soc. Sec.
Admin., 807 F.3d 996, 1002 (9th Cir. 2015).
FIVE-STEP SEQUENTIAL EVALUATION PROCESS
determine whether a claimant is disabled for purposes of the
Social Security Act, the ALJ follows a five-step process. 20
C.F.R. § 404.1520(a). The claimant bears the burden of
proof on the first four steps, but the burden shifts to the
Commissioner at step five. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999).
first step, the ALJ determines whether the claimant is
engaging in substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i). If so, the claimant is not disabled and
the inquiry ends. Id. At step two, the ALJ
determines whether the claimant has a severe medically
determinable physical or mental impairment. §
404.1520(a)(4)(ii). If not, the claimant is not disabled and
the inquiry ends. Id. At step three, the ALJ
considers whether the claimant's impairment or
combination of impairments meets or medically equals an
impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt.
404. § 404.1520(a)(4)(iii). If so, the claimant is
automatically found to be disabled. Id. If not, the
ALJ proceeds to step four. At step four, the ALJ assesses the
claimant's residual functional capacity and determines
whether the claimant is still capable of performing past
relevant work. § 404.1520(a)(4)(iv). If so, the claimant
is not disabled and the inquiry ends. Id. If not,
the ALJ proceeds to the fifth and final step, where he
determines whether the claimant can perform any other work
based on the claimant's residual functional capacity,
age, education, and work experience. §
404.1520(a)(4)(v). If so, the claimant is not disabled.
Id. If not, the claimant is disabled. Id.
one, the ALJ found that Plaintiff meets the insured status
requirements of the Social Security Act through September 30,
2011, and that he has not engaged in substantial gainful
activity since September 7, 2010. At step two, the ALJ found
that Plaintiff has the following severe impairments:
degenerative disc disease of the thoracic spine. At step
three, the ALJ determined that Plaintiff does not have an
impairment or combination of impairments that meets or
medically equals an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1.
four, the ALJ found that Plaintiff:
has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) with the
following exceptions: The claimant can never climb ladders,
ropes or scaffolds but can occasionally climb ramps and
stairs and ...