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Uthe v. Berryhill

United States District Court, D. Arizona

October 13, 2017

Ronald Glenn Uthe, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          David G. Campbell, United States District Judge.

         Pro se 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.

         I. Background.

         Plaintiff 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.

         II. Legal Standard.

         The 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.

         III. The ALJ's Five-Step 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, 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. § 404.1520(a)(4).

         At step 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.

         IV. Analysis.

         Plaintiff 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.

         In 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.

         The 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.[1] 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]lthough 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 ...


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