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Sfetku v. Commissioner of Social Security Administration

United States District Court, D. Arizona

January 3, 2019

Robert R. Sfetku, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          James A. Teilborg Senior United States District Judge.

         Pending before the Court is Plaintiff Robert R. Sfetku's (“Plaintiff”) appeal from the Social Security Commissioner's (the “Commissioner”) denial of his application for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. (Doc. 1 at 1-4).[1] This matter has been fully briefed by the parties.[2] Although Plaintiff requested oral argument, the Court denies this request because it would not materially assist the Court in reaching an informed decision, and because Plaintiff failed to follow the Court's procedure for requesting oral argument set forth in the Social Security Scheduling Order (Doc. 5).[3] Accordingly, the Court now rules on Plaintiff's appeal.

         I. BACKGROUND

         The parties are familiar with the background information in this case, and it is summarized in Administrative Law Judge (“ALJ”) Sheldon P. Zisook's June 9, 2016 decision. (See Doc 15-3 at 27-39). Accordingly, the Court will reference the background only as necessary to the analysis below.


         The ALJ's decision to deny disability benefits may be overturned “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. 1990)).

         “The 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). “Where evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion which must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is because “[t]he trier of fact and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see Benton, 331 F.3d at 1035 (“If the evidence can support either outcome, the Commissioner's decision must be upheld.”).

         The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports the ALJ's decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). On the other hand, the Court “may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

         Furthermore, the Court is not charged with reviewing the evidence and making its own judgment as to whether Plaintiff is or is not disabled. Rather, 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 agency. Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947). Thus, the Court's inquiry is constrained to the reasons asserted by the ALJ and the evidence relied upon in support of those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); 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). Accordingly, the Court “will not manufacture arguments for an appellant.” Arpin, 261 F.3d at 919 (citation omitted).

         A. Definition of a Disability

         A claimant can qualify for Social Security disability benefits only if he can show that, among other things, he is disabled. 42 U.S.C. § 423(a)(1)(E). The Social Security Act defines “disability” as the “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).

         A person is disabled only if his “physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).

         B. The Five-Step Evaluation Process

         The Social Security regulations set forth a five-step sequential process for evaluating disability claims. 20 C.F.R. § 404.1520(a)(4); see also Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). A finding of “not disabled” at any step in the sequential process will end the inquiry. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at the first four steps, but the burden shifts to the ALJ at the final step. Reddick, 157 F.3d at 721. The five steps are as follows:

         First, the ALJ determines whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id.

         At the second step, the ALJ next considers whether the claimant has a “severe medically determinable physical or mental impairment.” Id. § 404.1520(a)(4)(ii). If the claimant does not have a severe impairment, then the claimant is not disabled. Id. § 404.1520(c). A “severe impairment” is one that “significantly limits [the claimant's] physical or mental ability to do basic work activities.” Id. Basic work activities are the “abilities and aptitudes to do most jobs, ” such as lifting, carrying, reaching, understanding, carrying out and remembering simple instructions, responding appropriately to co-workers, and dealing with changes in routine.” Id. § 404.1521(b). Additionally, unless the claimant's impairment is expected to result in death, “it must have lasted or must be expected to last for a continuous period of at least 12 months” for the claimant to be found disabled. Id. § 404.1509.

         Third, having found a severe impairment, the ALJ then considers the severity of the claimant's impairment. Id. § 404.1520(a)(4)(iii). This requires the ALJ to determine if the claimant's impairment “meets or equals” one of the impairments listed in the regulations. Id. If so, 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.” Id. § 404.1545(a)(1). A claimant's RFC is the most the claimant can still do despite the effects of all the claimant's medically determinable impairments, including those that are not severe. Id. § 404.1545(a)(1-2).

         At step four, the ALJ determines whether, despite his impairments, the claimant can still perform “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 his past relevant work, the ALJ will find that the claimant is not disabled. Id. § 1520(a)(iv). Otherwise, the ALJ proceeds to the final step.

         At the fifth and final step, the ALJ considers whether the claimant “can make an adjustment to other work” that exists in the national economy. Id. § 404.1520(a)(4)(v). In making this determination, the ALJ considers the claimant's RFC, age, education, and work experience. Id. § 404.1520(g)(1). If the ALJ finds that the claimant can make an adjustment to other work, then the claimant is not disabled. Id. § 404.1520(a)(4)(v). However, if the ALJ finds that the claimant cannot make an adjustment to other work, then the claimant is disabled. Id.

         In evaluating the claimant's disability under this five-step process, the ALJ must consider all evidence in the case record. Id. § 404.1520(a)(3). This includes medical opinions, records, self-reported symptoms, and third-party reporting. See Id. §§ 404.1527; 404.1529.

         C. The ALJ's Evaluation under the Five Step Process

         Prior to beginning the sequential evaluation process, the ALJ noted that Plaintiff previously filed a Title II application for a period of disability and disability insurance benefits, and received a final decision dated September 14, 2012 stating that Plaintiff was disabled from February 7, 2010 through June 21, 2012. (Doc. 15-3 at 27). This September 14, 2012 decision also indicated that Plaintiff's period of disability ended on June 22, 2012, so Plaintiff was able to return to full-time work at a light exertional level as of that date. (Id.). Accordingly, the ALJ stated that pursuant to Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), the first ALJ's September 14, 2012 final decision finding that Plaintiff was not disabled as of June 22, 2012 gave rise to a “presumption of continuing nondisability” which Plaintiff could only overcome by proving “‘changed circumstances' indicating a greater disability.” (Doc. 15-3 at 27 (citing Chavez, 844 F.2d at 693)). However, because Plaintiff proved changed circumstances indicating a greater disability due to the fact that he had changed age category to closely approaching advanced age, [4]the ALJ determined that the presumption of continuing nondisability did not apply. (Id.). Further, the ALJ pointed out that the first ALJ's findings concerning Plaintiff's residual functional capacity (“RFC”), education, and work experience were entitled to res judicata consideration in the absence of “new and material evidence” on those issues. (Id. (citing Chavez, 844 F.2d at 693-94)). Deciding that Plaintiff's new evidence regarding his impairments was not material, the ALJ adopted the first ALJ's findings as to Plaintiff's severe impairments and RFC. (Id. at 27-28).

         At step one of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 15, 2013, the alleged onset date. (Id. at 30). In step two, the ALJ ascertained that Plaintiff had the following severe impairments: “degenerative disc disease, myocardial infarction, and history of implantable cardioverter-defibrillator.” (Id.). At this step, the ALJ also found that Plaintiff's obesity, irritable bowel syndrome, bilateral shoulder pain, unstable angina, abdominal pain, depression, and anxiety were non-severe. (Id. at 30-34). Under the third step, the ALJ determined that the severity of Plaintiff's impairments, singly and in combination, did not meet or medically equal the severity of the impairments listed in the Social Security Regulations. (Id. at 34).

         Before moving on to step four, the ALJ conducted an RFC determination after consideration of the entire record. (Id.). The ALJ determined that Plaintiff had “the residual functional capacity to perform the full range of light work” as defined in 20 C.F.R. § 404.1567(b). (Id.). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 38). Finally, the ALJ concluded at step five that based on Plaintiff's RFC, age, education, and work experience, Plaintiff could perform a significant number of jobs existing the national economy. (Id.). Consequently, the ALJ concluded that Plaintiff had not been under a disability under the Social Security Act from September 15, 2013 through June 9, 2016, the date of the ALJ's decision. (Id. at 39).

         III. ...

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