United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Plaintiff Antoinette Prear's
(“Plaintiff”) appeal from the Social Security
Commissioner's (the “Commissioner”) denial of
her application for a period of disability, disability
insurance benefits, and Supplemental Security Income
(“SSI”) under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401 et seq., 1381 et
seq. (2015). (Doc. 16 at 1.) Plaintiff argues that the
Administrative Law Judge (the “ALJ”) erred in his
evaluation of the medical opinion evidence and his evaluation
of Plaintiff's subjective symptom testimony. The Court
now rules on Plaintiff's appeal.
parties are familiar with the background information in this
case, and it is summarized in the ALJ's decision.
(See Doc. 13-3 at 23, 25-29.) Accordingly, the Court
will not restate such information here.
ALJ's denial of disability benefits may be set aside
“only when the ALJ's findings are based on legal
error or not supported by substantial evidence in the
record.” Benton ex rel. Benton v. Barnhart,
331 F.3d 1030, 1035 (9th Cir. 2003).
“‘Substantial evidence' means more than a
mere scintilla, but less than a preponderance, i.e., such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing
Young v. Sullivan, 911 F.2d 180, 183 (9th Cir.
inquiry here is whether the record, read as a whole, yields
such evidence as would allow a reasonable mind to accept the
conclusions reached by the ALJ.” Gallant v.
Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation
omitted). When considering the evidence, “a reviewing
court must consider the entire record as a whole and may not
affirm simply by isolating a ‘specific quantum of
supporting evidence.'” Id. (quoting
Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.
1989)). “If the evidence can reasonably support either
affirming or reversing the [ALJ]'s conclusion, the court
may not substitute its judgment for that of the [ALJ].”
Flaten v. Sec'y of Health & Human Servs., 44
F.3d 1453, 1457 (9th Cir. 1995). This necessarily means that
“[i]f the evidence can support either outcome, the
Commissioner's decision must be upheld.”
Benton, 331 F.3d at 1035.
It is a
“fundamental rule of administrative law” that a
reviewing court, in dealing with a judgement which an
administrative agency alone is authorized to make, may only
make its decision based upon evidence discussed by the ALJ.
Sec. & Exch. Comm'n v. Chenery Corp., 332
U.S. 194, 196 (1947); see Connett v. Barnhart, 340
F.3d 871, 874 (9th Cir. 2003). Thus, the Court's review
is constrained only to “the reasons the ALJ asserts,
” and the evidence supporting those reasons. See
Connett, 340 F.3d at 874; Frank v. Schultz, 808
F.3d 762, 764 (9th Cir. 2015). Similarly, when challenging an
ALJ's decision, “issues which are not specifically
and distinctly argued and raised in a party's opening
brief are waived.” Arpin v. Santa Clara Valley
Trans. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (citing
Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1110 n.1
(9th Cir. 2000) (en banc), vacated and remanded on other
grounds, 535 U.S. 391 (2002)); see also Bray v.
Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7
(9th Cir. 2009) (applying the principle to Social Security
appeals). Thus, the Court “will not manufacture
arguments for an appellant.” Arpin, 261 F.3d
at 919 (citation omitted).
Definition of a Disability
claimant can qualify for Social Security disability benefits
only if she can show that, among other things, she is
disabled. 42 U.S.C. § 423(a)(1)(E). A disability is
defined as an “inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.”
Id. § 423(d)(1)(A).
person is disabled only if her “physical or mental
impairment or impairments are of such severity that [she] is
not only unable to do [her] previous work but cannot,
considering [her] age, education, and work experience, engage
in any other kind of substantial gainful work which exists in
the national economy.” Id. §
The Five-Step Evaluation Process
Social Security regulations set forth a five-step sequential
evaluation process for evaluating a claim of disability. 20
C.F.R. § 404.1520(a)-(f); see also Benton, 331
F.3d at 1034. Finding the claimant “disabled” or
“not disabled” at any step ends the inquiry. 20
C.F.R. § 404.1520(a)(4). If such a finding cannot be
made at a particular step, then the ALJ moves on to the next
step. Id. The claimant bears the burden of proof for
steps one to four, but the burden shifts to the Commissioner
for step five. Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999).
first step, the ALJ determines if the claimant is engaged in
substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i). If the claimant is engaged in substantial
gainful activity, then the claimant is not disabled.
second step, the ALJ considers the medical severity of the
claimant's impairments. Id. §
404.1520(a)(4)(ii). “If [the claimant] do[es] not have
a severe medically determinable physical or mental impairment
. . . we will find that [the claimant is] not
disabled.” Id. A “severe
impairment” is one that “significantly limits
[the claimant's] physical or mental ability to do basic
work activities.” Id. § 404.1520(c).
Basic work activities are “the abilities and aptitudes
necessary to do most jobs.” Id. §
404.1522(b). Examples of basic work activities include:
(1) Physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking; (3)
Understanding, carrying out, and remembering simple
instructions; (4) Use of judgement; (5) Responding
appropriately to supervision, co-workers and usual work
situations; and (6) Dealing with changes in a routine work
Id. § 404.1522(b)(1)-(6).
unless the claimant's impairment is expected to result in
death, “it must have lasted or be expected to last for
a continuous period of at least 12 months” for the
claimant to be found disabled. Id. § 404.1509
(incorporated by reference in id. §
third step, having found a medically determinable impairment,
the ALJ considers the severity of the claimant's
impairment. Id. § 404.1520(a)(4)(iii). This
consideration requires the ALJ to determine if the
claimant's impairment “meets or equals” one
of the impairments listed in the regulations. Id. If
the impairment meets or equals a listed impairment, then the
ALJ will find that the claimant is disabled. Id. If
the claimant's impairment does not meet or equal a listed
impairment, then the ALJ will assess the claimant's
“residual functional capacity based on all the relevant
medical and other evidence in [the claimant's] case
record.” Id. § 404.1520(e). In assessing
the claimant's “residual functional capacity”
(“RFC”), the ALJ will consider the claimant's
“impairment(s), and any related symptoms, such as pain,
[that] may cause physical and mental limitations that affect
what [the claimant] can do in a work setting. [The
claimant's] residual functional capacity is the most [the
claimant] can still do despite [the claimant's]
limitations.” Id. § 404.1545(a)(1).
fourth step, the ALJ considers the claimant's ability to
perform her “past relevant work.” Id.
§ 404.1520(a)(4)(iv). To do this the ALJ compares the
claimant's residual function capacity with the physical
and mental demands of the claimant's past relevant work.
Id. § 404.1520(f). If the claimant can still
perform her past relevant work, the ALJ will find that the
claimant is not disabled. Id. §
fifth and last step, the ALJ considers if the claimant can
“make an adjustment to other work.” Id.
§ 404.1520(a)(4)(v). In making this determination, the
ALJ considers the claimant's residual functional capacity
and the claimant's age, education, and work experience.
Id. If the ALJ finds that the claimant can make an
adjustment to other work, then the claimant is not disabled.
Id. If the ALJ finds that the claimant cannot make
an adjustment to other work, then the claimant is disabled.
making a determination on the claimant's disability
through the five-step process, the ALJ must “consider
all evidence in [the claimant's] case record.”
Id. § 404.1520(a)(3). This evidence includes
medical opinions, records, self-reported symptoms, and
third-party reporting. See Id. §§
404.1527, 404.1529; SSR 06-3p, 71 Fed. Reg. 45593-03 (Aug. 9,
The ALJ's Evaluation Under the Five-Step Process
found that Plaintiff had not engaged in substantial gainful
activity since August 1, 2014 and that Plaintiff suffered
from two severe impairments,  satisfying the first and second
steps of the process. (Doc. 13-3 at 25.) Under the third
step, the ALJ found that Plaintiff does not have “an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments” in the Social Security regulations that
automatically result in a finding of disability.
(Id. at 26.)
then conducted the RFC determination with “careful
consideration of the entire record.” (Id. at
27.) The ALJ determined that Plaintiff has the RFC to
“perform a wide range of light work . . . except the
claimant is limited to lifting-carrying 20 pounds
occasionally and 10 pounds frequently; is limited to sitting
six hours and standing-walking six hours in an eight-hour
workday; and must work in a climate controlled environment
out of heat.” (Id.)
four, the ALJ compared Plaintiff's RFC with the physical
and mental demands of Plaintiff's past relevant work.
(Id. at 29.) The ALJ determined that Plaintiff
“is capable of performing past relevant work as an
insurance agent . . ., medical secretary . . ., and
admissions representative.” (Id.) The ALJ went
on to state that “[t]his work does not require the