United States District Court, D. Arizona
G. Campbell, United States District Judge.
Plaintiff Ronald Uthe seeks review under 42 U.S.C. §
405(g) of the final decision of the Commissioner of Social
Security, 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
ALJ's decision contains reversible error, the Court will
reverse and remand for further proceedings.
is a 54 year-old male who previously served in the military
and worked as a security guard and private investigator. A.R.
19, 35. Plaintiff applied for disability insurance benefits
on November 12, 2014, and for supplemental security income on
April 16, 2015, alleging disability beginning January 1,
2005. A.R. 164-74. On April 15, 2016, Plaintiff appeared
unrepresented and testified at a hearing before the ALJ. A.R.
29-54. A vocational expert also testified. A.R. 49-53. On May
12, 2016, the ALJ issued a decision that Plaintiff was not
disabled within the meaning of the Social Security Act. A.R.
11-21. This became the Commissioner's final decision when
the Appeals Council denied Plaintiff's request for
review. A.R. 1.
Court reviews only those issues raised by the party
challenging the ALJ's decision. See Lewis v.
Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court
may set aside the determination only if it is not supported
by substantial evidence or is based on legal error. Orn
v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
Substantial evidence is more than a scintilla, less than a
preponderance, and relevant evidence that a reasonable person
might accept as adequate to support a conclusion considering
the record as a whole. Id. In determining whether
substantial evidence supports a decision, the court must
consider the record as a whole and may not affirm simply by
isolating a “specific quantum of supporting
evidence.” Id. As a general rule,
“[w]here the evidence is susceptible to more than one
rational interpretation, one of which supports the ALJ's
decision, the ALJ's conclusion must be upheld.”
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2002) (citations omitted). Harmless error principles apply in
the Social Security context. Molina v. Astrue, 674
F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if
there remains substantial evidence supporting the ALJ's
decision and the error does not affect the ultimate
nondisability determination. Id.
The ALJ's Five-Step 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, and the burden shifts to the
Commissioner at step five. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999). To establish disability, the
claimant must show that (1) he is not currently working, (2)
he has a severe impairment, and (3) this impairment meets or
equals a listed impairment or (4) his residual functional
capacity (“RFC”) prevents his performance of any
past relevant work. If the claimant meets his burden through
step three, the Commissioner must find him disabled. If the
inquiry proceeds to step four and the claimant shows that he
is incapable of performing past relevant work, the
Commissioner must show in the fifth step that the claimant
nonetheless is capable of other work suitable for his RFC,
age, education, and work experience. 20 C.F.R. §
one, the ALJ found that Plaintiff meets the insured status
requirements of the Social Security Act through December 31,
2008, and has not engaged in substantial gainful activity
since January 1, 2005. A.R. 13. At step two, the ALJ found
that Plaintiff has the following severe impairment:
degenerative disc disease. A.R. 13-14. The ALJ acknowledged
that the record contained evidence of hearing loss,
hypertension, hyperlipidemia, history of skin cancer, sleep
apnea, GERD, and depression, but found that these are not
severe impairments. A.R. 14. 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 Appendix 1 to Subpart P of 20 C.F.R. Pt.
404. A.R. 15-16. At step four, the ALJ found that Plaintiff
has the RFC to perform light work with some additional
limitations, and Plaintiff is unable to perform any past
relevant work. A.R. 16-19. At step five, the ALJ found that,
considering Plaintiff's age, education, work experience,
and RFC, there are jobs that exist in significant numbers in
the national economy that Plaintiff could perform. A.R. 20.
argues the ALJ's decision is defective because it is
based on legal error and is not supported by substantial
evidence. Doc. 14 at 4. More specifically, Plaintiff argues
that the ALJ erred by failing to consider his Department of
Veterans Affairs (“VA”) disability rating. Doc.
14 at 1, 7-8. Plaintiff also argues that the ALJ's
determination that he could perform light work is not
supported by substantial evidence, and that the ALJ erred by
(1) rejecting the opinions of Plaintiff's specialist VA
treating physicians, (2) applying an incorrect standard to
determine that Plaintiff's additional impairments were
non-severe, (3) finding that Plaintiff's impairments did
not meet or equal a listed impairment, (4) failing to
consider Plaintiff's limitations in response to work
stress, (5) rejecting lay evidence, (6) relying on
vocational-expert testimony that did not account for all of
Plaintiff's non-exertional impairments, and (7)
discrediting Plaintiff's testimony. Doc. 14 at 4-8.
support of his arguments, Plaintiff simply cites a legal
standard without analyzing how the standard applies to the
ALJ's decision. Plaintiff does not identify where the ALJ
committed each of the alleged errors, nor does Plaintiff
point to evidence in the record to support his arguments. The
Court “review[s] only issues which are argued
specifically and distinctly in a party's opening
brief.” Greenwood v. F.A.A., 28 F.3d 971, 977
(9th Cir. 1994). The Court will not “manufacture
arguments for an appellant, and a bare assertion does not
preserve a claim.” Id. The Court has reviewed
the ALJ's decision for apparent inconsistencies with the
legal standards cited by Plaintiff, and has found one clear
inconsistency regarding the ALJ's failure to consider
Plaintiff's VA disability rating. Because this issue
requires remand, the Court will not address Plaintiff's
remaining arguments. Pro se Plaintiff may argue his
additional points on remand.
ALJ's decision contains no reference to Plaintiff's
VA disability rating, although the record suggests in at
least 16 places that the VA considered Plaintiff to be 100%
service-connected disabled and unemployable. See Doc.
18 at 10; A.R. 436, 485, 500, 510, 511, 517, 590-92, 594-96,
598-99, 602, 604. The record does not contain the actual VA
disability determination; the rating is simply mentioned in
Plaintiff's later VA medical records. Id.
a VA rating of disability does not necessarily compel the SSA
to reach an identical result, 20 C.F.R. § 404.1504, the
ALJ must consider the VA's finding in reaching his
decision.” McCartey v. Massanari, 298 F.3d
1072, 1076 (9th Cir. 2002) (reversing because the ALJ's
decision did not mention claimant's VA disability
rating). Ordinarily, an ALJ must give great weight to a VA
disability determination, but he may give less ...