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Klain v. Commissioner of Social Security Administration

United States District Court, D. Arizona

December 11, 2017

Carrie Michele Klain, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          David G. Campbell United States District Judge.

         Plaintiff Carrie Klain seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (“the Commissioner”), which denied her disability insurance benefits under sections 216(i) and 223(d) of the Social Security Act. The issues are fully briefed and the Court concludes that oral argument will not aid its decision. See Fed. R. Civ. P. 78(b); LRCiv 7.2(f). Because Plaintiff has not shown that the decision of the Administrative Law Judge (“ALJ”) is unsupported by substantial evidence or based on legal error, the Commissioner's decision will be affirmed.

         I. Background.

         Plaintiff is a 44 year old female who previously worked as a hair stylist. A.R. 2229. In November 2009, Plaintiff applied for disability insurance benefits, alleging disability beginning on June 30, 2006. A.R. 26. On July 10, 2012, after a hearing, an ALJ decided that Plaintiff was not disabled within the meaning of the Social Security Act. A.R. 26-38. This became the Commissioner's final decision when the Appeals Council denied review. A.R. 1. Plaintiff sought review in this Court, but before a decision was made, the parties stipulated that the case should be remanded to the Commissioner to correct several errors. A.R. 2332-33. Judge Tuchi accepted the parties' stipulation and entered their proposed order. CV-14-01235-PHX-JJT, Doc. 23.

         On remand, the matter was assigned to a different ALJ and a hearing was held. In August 2016, the ALJ issued a decision finding Plaintiff not disabled. A.R. 2215-31. This became the Commissioner's final decision when Plaintiff did not file exceptions. Doc. 1 ¶ 5. Plaintiff now seeks review of the second ALJ's decision.

         II. 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) she is not currently working, (2) she has a severe impairment, and (3) this impairment meets or equals a listed impairment or (4) her residual functional capacity (“RFC”) prevents her performance of any past relevant work. If the claimant meets her burden through step three, the Commissioner must find her disabled. If the inquiry proceeds to step four and the claimant shows that she is incapable of performing past relevant work, the Commissioner must show in the fifth step that the claimant is capable of other work suitable for her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4).

         At step one, the ALJ found that Plaintiff last met the insured status requirements of the Social Security Act on September 30, 2010, and did not engage in substantial gainful activity between June 30, 2006, and September 30, 2010. A.R. 2217-18. At step two, the ALJ found that Plaintiff had the following severe impairments: chronic interstitial cystitis, kidney stones, and mild lumbar degenerative disc disease. A.R. 2218. The ALJ acknowledged that the record contained evidence of hypertension, anemia, hypothyroidism, depression, and anxiety, but found that these impairments were non- severe. A.R. 2218-22. At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. A.R. 2222. At step four, the ALJ found that Plaintiff had the RFC to perform sedentary work with some additional limitations, and that Plaintiff was unable to perform her past relevant work as a hair stylist. A.R. 2222-29. At step five, the ALJ concluded that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. A.R. 2229-30.

         III. Standard of Review and Plaintiff's Arguments.

         The Court may set aside the Commissioner's disability 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). The Court may not reverse an ALJ's decision on the basis of error that is harmless, and “the burden is on the party claiming error to demonstrate not only the error, but also that it affected his substantial rights.” Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012); Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

         A claimant cannot prevail on appeal simply by re-arguing the evidence. An ALJ's decision must be supported only by “substantial evidence.” Orn, 495 F.3d at 630 (9th Cir. 2007). Substantial evidence is “more than a mere scintilla but less than a preponderance” - it is relevant evidence that a reasonable person might accept as adequate to support a conclusion. Id. “Even when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record.” Molina, 674 F.3d at 1111; Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

         Plaintiff's briefs in this case focus almost entirely on re-arguing the evidence. They urge the Court to accept Plaintiff's testimony, her doctors' opinions, and the testimony of her family members, but they do not show how the ALJ erred in discounting that testimony or rejecting those opinions. Indeed, Plaintiff says very little about the ALJ's reasoning in her briefs. Because Plaintiff largely fails to address the ALJ's analysis and the evidence on which the ALJ relied - opting instead to restate evidence the ALJ has already considered - Plaintiff has not shown error or a lack of substantial evidence that would enable the Court to reverse the ALJ's decision.

         The Ninth Circuit consistently has held that courts will not “manufacture arguments for an appellant, ” but instead will “review only issues which are argued specifically and distinctly in a party's opening brief.” Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). The Ninth Circuit has applied this principle in Social Security cases. See Hastings v. Comm'r of Soc. Sec. Admin., 581 F. App'x 694, 695 (9th Cir. 2014). Most district courts in the Ninth Circuit likewise apply Independent Towers to find waiver where a social security claimant fails to present an argument. See, e.g., Betts. v. Comm'r of Soc. Sec. Admin., No. CV-16-01579-PHX-NVW, 2017 WL 4277178, at *1 (D. Ariz. Sept. 27, 2017); Yager v. Berryhill, No. 2:16-CV-00051-GMN-VCF, 2017 WL 3495174, at *2 (D. Nev. Aug. 15, 2017); Hilt-Hayden v. Comm'r, Soc. Sec. Admin., No. 6:15-CV-00258-HZ, 2016 WL 3396937, at *2-3 (D. Or. June 14, 2016); Henry v. Colvin, No. 1:15-CV-00100-JLT, 2016 WL 164956, at *14 n.5 (E.D. Cal. Jan. 14, 2016). Some district courts in this circuit have held, however, that they have a “duty to make a full review of the facts and an independent determination as to whether the Commissioner's findings are supported by substantial evidence.” Tadman v. Berryhill, No. CV 15-07795-KES, 2017 WL 1073341, at *4 (C.D. Cal. Mar. 21, 2017) (quoting Farley v. Colvin, 231 F.Supp.3d 335, 339 (N.D. Cal. 2017)). The Court does not find these decisions persuasive in light of the Ninth Circuit cases cited above and the clear majority to the contrary among district courts in this circuit. But even if the Court conducts its own review of the evidence supporting the ALJ's decision in this case, it finds the decision supported by substantial evidence.

         IV. Analysis.

         Plaintiff makes seven general categories of arguments: (1) the ALJ posed flawed hypothetical questions to the vocational expert; (2) there was not substantial evidence to support the RFC; (3) the ALJ improperly classified the depression and anxiety as non- severe impairments; (4) the ALJ should have solicited a medical expert opinion; (5) the ALJ improperly rejected medical opinion evidence; (6) the ALJ improperly discredited Plaintiff's symptom testimony; and (7) the ALJ improperly discredited lay witness testimony. Doc. 25 at 10-24. The Court will address each category.[1]

         A. ...


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