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Betts v. Commissioner of Social Security Administration

United States District Court, D. Arizona

September 27, 2017

David M. Betts, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          Neil V. Wake, Senior United States District Judge.

         Plaintiff 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.

         I. BACKGROUND

         Plaintiff 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.

         On 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.

         II. STANDARD OF REVIEW

         Claims 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. 1999).

         A court 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).

         III. FIVE-STEP SEQUENTIAL EVALUATION PROCESS

         To 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).

         At the 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.

         At step 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.

         At step 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 ...

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