United States District Court, D. Arizona
Russel Holland, United States District Judge
an action for judicial review of the denial of disability
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401-434. Plaintiff Nancy Guerrero has timely
filed her opening brief,  to which defendant Nancy A. Berryhill
has timely responded. Oral argument was not requested and is not
January 6, 2014, plaintiff filed an application for
disability benefits under Title II of the Social Security
Act, alleging that she became disabled on December 20, 2013.
Plaintiff alleges that she is disabled due to arthritis,
fibromyalgia, thyroid cancer, dislocated back disc work
injury, carpal tunnel, leg nerve damage, and myopia.
Plaintiff's application was denied initially and on
reconsideration. After a hearing on June 15, 2016, an
administrative law judge (ALJ) denied plaintiff's claim.
On September 18, 2017, the Appeals Council denied
plaintiff's request for review, thereby making the
ALJ's July 15, 2016 decision the final decision of the
Commissioner. On November 20, 2017, plaintiff commenced this
action in which she asks the court to find that she is
entitled to disability benefits.
was born on February 2, 1962. She was 54 years old at the
time of the administrative hearing. Plaintiff is married and
lives with her husband and teen-aged son. Plaintiff does not
have a high school education. Plaintiff's first language
is Spanish and she does not speak English fluently.
Plaintiff's past relevant work is as a hand packager in a
first determined that plaintiff met “the insured status
requirements of the Social Security Act through December 31,
2017.” The ALJ then applied the five-step
sequential analysis used to determine whether an individual
one, the ALJ found that plaintiff had “not engaged in
substantial gainful activity since December 20, 2013, the
alleged onset date. . . .”
two, the ALJ found that plaintiff had
the following medically determinable impairments: history of
thyroid cancer, now stable; hypothyroidism; hyperlipidemia;
vitamin D insufficiency; degenerative disc disease of the
lumbar spine, including stenosis; fibromyalgia; chronic pain
syndrome; carpal tunnel syndrome; bilateral upper extremity
paresthesia; Bouchard and Heberdon's nodules; headaches
and dizziness secondary to vertigo; hypertension; unstable
angina, trace mitral regurgitation, and atherosclerotic heart
disease of native coronary artery without angina pectoris;
Sicca syndrome; and fatty liver. . . .
the ALJ found that plaintiff did “not have an
impairment or combination of impairments that has
significantly limited (or is expected to significantly limit)
the ability to perform basic work-related activities for 12
consecutive months[.]” Thus, the ALJ found that
plaintiff did “not have a severe impairment or
combination of impairments. . . .”
explained that this finding was “supported by the
repeatedly mild radiographic findings, the mostly normal
findings on physical examination, and the claimant's
demonstrated response to conservative treatment
modalities.” It was for these reasons that the ALJ also
found plaintiff's statements about the severity of her
impairments less than credible.
considered the medical opinions in the record. The ALJ gave
little weightto the opinions of Dr. Scott,
Dr. Wavak,  and Dr. Griffith.
concluded that plaintiff was “not disabled under
sections 216(i) and 223(d) of the Social Security
to 42 U.S.C. § 405(g), the court has the “power to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of
the Commissioner. . . .” The court “properly
affirms the Commissioner's decision denying benefits if
it is supported by substantial evidence and based on the
application of correct legal standards.” Sandgathe
v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
“Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Id. (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). “‘To determine whether substantial
evidence supports the ALJ's decision, [the court]
review[s] the administrative record as a whole, weighing both
the evidence that supports and that which detracts from the
ALJ's conclusion.'” Id. (quoting
Andrews, 53 F.3d at 1039). If the evidence is
susceptible to more than one reasonable interpretation, the
court must uphold the Commissioner's decision.
Id. But, the Commissioner's decision cannot be
affirmed “‘simply by isolating a specific quantum
of supporting evidence.'” Holohan v.
Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
argues that the ALJ erred at step two by finding that none of
her impairments were severe. “An impairment or
combination of impairments may be found ‘not severe
only if the evidence establishes a slight
abnormality that has no more than a minimal effect on an
individual's ability to work.'” Webb v.
Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting
Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.
1996)). “The Commissioner has stated that ‘[i]f
an adjudicator is unable to determine clearly the effect of
an impairment or combination of impairments on the
individual's ability to do basic work activities, the
sequential evaluation should not end with the not severe
evaluation step.'” Id. at 687 (quoting
S.S.R. No. 85-28 (1985)). “Step two, then, is a de
minimis screening device [used] to dispose of groundless
claims and an ALJ may find that a claimant lacks a medically
severe impairment or combination of impairments only when his
conclusion is clearly established by medical evidence.”
Id. (internal citations omitted). “Thus,
applying [the] normal standard of review to the requirements
of step two, [the court] must determine whether the ALJ had
substantial evidence to find that the medical evidence
clearly established that [plaintiff] did not have a medically
severe impairment or combination of impairments.”
argues that there was not substantial evidence supporting the
ALJ's finding that her impairments were not severe.
First, plaintiff argues that the ALJ improperly discounted
her statements about the severity of her impairments.
ALJ engages in a two-step analysis to determine whether a
claimant's testimony regarding subjective pain or
symptoms is credible.” Garrison v. Colvin, 759
F.3d 995, 1014 (9th Cir. 2014). “‘First, the ALJ
must determine whether the claimant has presented objective
medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms
alleged.'“ Id. (quoting Lingenfelter
v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)).
“In this analysis, the claimant is not required to show
‘that her impairment could reasonably be expected to
cause the severity of the symptom she has alleged; she need
only show that it could reasonably have caused some degree of
the symptom.'” Id. (quoting
Smolen, 80 F.3d at 1282). “Nor must a claimant
produce ‘objective medical evidence of the pain or
fatigue itself, or the severity thereof.'”
Id. (quoting Smolen, 80 F.3d at 1282).
“If the claimant satisfies the first step of this
analysis, and there is no evidence of malingering, ‘the
ALJ can reject the claimant's testimony about the
severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.'” Id. at
1014-15 (quoting Smolen, 80 F.3d at 1281).
“This is not an easy requirement to meet: ‘The
clear and convincing standard is the most demanding required
in Social Security cases.'” Id. at 1015
(quoting Moore v. Comm'r of Soc. Sec. Admin.,
278 F.3d 920, 924 (9th Cir. 2002)). “In evaluating the
claimant's testimony, the ALJ may use ‘ordinary
techniques of credibility evaluation.'” Molina
v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2011) (quoting
Turner v. Comm'r of Social Sec., 613 F.3d 1217,
1224 n.3 (9th Cir. 2010)). “For instance, the ALJ may
consider inconsistencies either in the claimant's
testimony or between the testimony and the claimant's
conduct, unexplained or inadequately explained failure to
seek treatment or to follow a prescribed course of treatment,
and whether the claimant engages in daily activities
inconsistent with the alleged symptoms[.]” Id.
(internal citations omitted).
found plaintiff's pain and symptom statements less than
credible because they were not supported by the medical
evidence and because her impairments had responded to
conservative treatment. ...