United States District Court, D. Arizona
Robert R. Sfetku, Plaintiff,
Commissioner of Social Security Administration, Defendant.
A. Teilborg Senior United States District Judge.
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). This matter has been fully briefed by the
parties. 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). Accordingly, the
Court now rules on Plaintiff's appeal.
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
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.
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.”).
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).
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).
Definition of a Disability
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).
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).
The Five-Step Evaluation Process
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
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.
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.
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. §
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.
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.
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. §§
The ALJ's Evaluation under the Five Step
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, 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).
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
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).