United States District Court, D. Arizona
G. Campbell United States District Judge.
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.
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.
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.
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) 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).
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.
Standard of Review and Plaintiff's Arguments.
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).
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).
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.
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.
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.