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Benear v. Commissioner of Social Security Administration

United States District Court, D. Arizona

January 18, 2019

Lorain Benear, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending before the Court is Plaintiff Lorain Benear's (“Plaintiff”) appeal from the Social Security Commissioner's (the “Commissioner”) denial of her 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 1-2). This matter has been fully briefed by the parties.[1] 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 the Administrative Law Judge's (“ALJ”) decision. (See Doc 16-3 at 35- 51). Accordingly, the Court will reference the background only as necessary to the analysis below.

         II. LEGAL STANDARD

         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.” Id. (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) (internal quotations 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). 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. § 404.1520(a)(4)(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

          At step one of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 27, 2014, the alleged onset date.[2](Doc. 16-3 at 39). In step two, the ALJ ascertained that Plaintiff had the following severe impairments: “seizure disorder, degenerative disc disease of the cervical, knee osteoarthritis (mild) and lumbar spine, fibromyalgia and history of lupus.” (Id.). At this step, the ALJ also found that Plaintiff's left upper extremity fracture, ovarian cyst, status post cerebrovascular accident, heart murmur, tremors, depression, panic disorder, and adjustment disorder were non-severe. (Id.). 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 42).

         Before moving on to step four, the ALJ conducted an RFC determination after consideration of the entire record. (Id. at 43). The ALJ found that Plaintiff had “the residual functional capacity to perform light work[, ]” but restricted her from climbing ladders, ropes or scaffolds, crawling, and driving on the job. (Id.). The ALJ also noted that Plaintiff could “occasionally balance, ” but stated that she “cannot be exposed to dangerous machinery with moving mechanical parts or to unprotected heights that are high or exposed.” (Id.).

         At step four, the ALJ found that Plaintiff could perform past relevant work as a telephone solicitor because this work did “not require the performance of work-related activities precluded by” Plaintiff's RFC. (Id. at 50). Consequently, the ALJ did not proceed to the fifth and final step but, rather, concluded that Plaintiff had not been under a disability from January 27, 2014 through June 7, 2016, the date of the ALJ's decision. (Id. at 50-51); see 20 C.F.R. § 404.1520(a)(4)(iv) (stating that if the claimant can still do her past relevant work, the ALJ will find that she is not disabled).

         III. ANALYSIS

         Plaintiff asks that the ALJ's decision be vacated because it is not free of legal error. (Doc. 24 at 2). Specifically, Plaintiff argues that: (1) the ALJ erred in finding no severe mental impairment; (2) the ALJ improperly weighed the opinions of treating physicians Dr. Hayashi, Dr. Hagevik, and Dr. McClain; (3) the ALJ improperly used the opinions of State agency consulting physicians to reject Plaintiff's evidence of disability; and (4) the ALJ's rejection of Plaintiff's symptom testimony is unsupported by clear and convincing evidence. (Id. at 14-28). Accordingly, Plaintiff asks that the ALJ's decision be reversed and remanded for an award of benefits. (Id. at 29). In the alternative, Plaintiff asks that the matter be remanded for a new hearing and decision on an open record, “and that the ALJ be advised to allow questioning of State agency physician[s] in accord with 42 U.S.C. § 405(d) and Richardson v. Perales, 402 U.S. 389, 397 (1971).” (Id. at 30). However, for the reasons set forth below, the final decision of the Commissioner is affirmed.

         A. Whether the ALJ Erred In Finding No Severe Mental Impairment

         Plaintiff first claims that the ALJ erred by classifying her mental impairments as not severe. (Doc. 24 at 14-19).

         At step two of the sequential evaluation, the ALJ determines whether the claimant has a medically severe impairment or combination of impairments. Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011); 20 C.F.R. § 404.1520(a)(4)(ii). “An impairment or combination of impairments is not severe if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1522(a). Basic work activities are “the abilities and aptitudes necessary to do most jobs, ” such as walking, standing, seeing, hearing, speaking, understanding instructions, use of judgment, responding appropriately to usual work situations, and dealing with changes in a routine work setting. Id. § 404.1522(b). “[A]n 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.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (internal quotations and citation omitted); see also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (An ALJ may find an impairment or combination of impairments “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.”) (internal quotations omitted) (citing SSR 85-28, 1985 WL 56856; Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)).

         When the severity of a mental impairment is evaluated at step two, the ALJ first determines whether the claimant has a medically determinable mental impairment. 20 C.F.R. § 404.1520a(b)(1).[3] Should the ALJ decide that a claimant has such a medically determinable mental impairment, the ALJ “must specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment[]” in her written decision. Id. §§ 404.1520a(b)(1), (e)(4). Next, the ALJ rates “the degree of functional limitation resulting from the impairment[]” in four broad functional areas: (i) activities of daily living; (ii) social functioning; (iii) concentration, persistence, or pace; and (iv) episodes of decompensation. Id. §§ 404.1520a(b)(2), (c)(3).[4] The degree of functional limitation is based on the extent to which the claimant's impairment interferes with his ability “to function independently, appropriately, effectively, and on a sustained basis.” Id. § 404.1520a(c)(2). Finally, after the degree of functional limitation is rated, the ALJ determines the severity of the claimant's mental impairment. Id. § 404.1520a(d). The ALJ's decision “must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s).” Id. § 404.1520a(e)(4). If the degree of limitation in the first three functional areas is “none” or “mild” and “none” in the fourth area, it is generally concluded that the impairment is not severe, “unless the evidence otherwise indicates that there is more than a minimal limitation in [the claimant's] ability to do basic work activities.” Id. § 404.1520a(d)(1).

         Here, the ALJ comprehensively illustrated why she found Plaintiff's mental impairments to be non-severe at step two of the sequential evaluation after careful consideration of the entire record. (Doc. 16-3 at 39-42). First, the ALJ determined that Plaintiff had medically determinable mental impairments, including depression, panic disorder, and adjustment disorder. (Id. at 39). Then, the ALJ examined the medical evidence to determine whether Plaintiff's mental impairments significantly limited her ability to do basic work activities. (Id. at 39-42). After evaluating Plaintiff's mental impairments using the technique set forth in 20 C.F.R. § 404.1520a, the ALJ determined that Plaintiff suffered only “mild” limitations in the first three functional areas of activities of daily living, social functioning, and concentration, persistence or pace. (Id. at 40). Analyzing the fourth functional area, the ALJ noted that Plaintiff had not experienced any episodes of decompensation of extended duration. (Id. at 41). As a result, the ALJ concluded that Plaintiff's mental impairments did not cause more than minimal limitation in her ability to perform basic mental work activities and were, therefore, nonsevere. (Id. at 39-42); see 20 C.F.R. § 404.1520a(d)(1). The ALJ's finding is clearly established by medical evidence and supported by the record. Webb, 433 F.3d at 687.

         Plaintiff challenges the ALJ's findings using the technique set forth in 20 C.F.R. § 404.1520a, believing the ALJ incorrectly assessed her functioning in the first three functional areas: (i) activities of daily living; (ii) social functioning; and (iii) maintaining concentration, persistence, or pace. (Doc. 24 at 15-17). In the first functional area, activities of daily living, the ALJ cited Plaintiff's Function Report as evidence that Plaintiff could dress herself, bathe, care for her hair, feed herself, shave, and use the toilet. (Doc. 16-3 at 40 (citing Doc. 16-7 at 16)). The ALJ also noted that Plaintiff indicated in her Function Report that she could prepare simple meals, drive independently, did not require reminders to take care of personal needs and grooming, and could “do light household chores such as vacuuming and mopping with help.” (Id. (citing Doc. 16-7 at 17- 18)). Finding that these activities demonstrated that Plaintiff could “independently initiate and participate in activities without supervision or direction, ” the ALJ concluded that Plaintiff had only mild limitation in activities of daily living. (Id.).

         Although Plaintiff claims that there are multiple problems with the ALJ's analysis in this first functional area, (see Doc. 24 at 15), the Court does not agree. First, Plaintiff contends that the ALJ mischaracterized Plaintiff's answers on her Function Report by citing Plaintiff's “ability to perform chores such as vacuuming and mopping” despite the fact that “these activities were listed in response to a question asking which chores [Plaintiff] needed help doing.” (Id. (citing Doc. 16-7 at 17)). This argument has no merit, as the ALJ's decision explicitly stated that Plaintiff could “do light household chores such as vacuuming and mopping with help.” (Doc. 16-3 at 40 (emphasis added)).

         Second, Plaintiff argues that the ALJ erred by relying solely on Plaintiff's Function Report, which was completed almost two months prior to Plaintiff's alleged onset date of January 27, 2014, rather than Plaintiff's hearing testimony that she did not drive, did not go out alone, did not shower alone, needed assistance dressing herself, and needed help with chores. (Doc. 24 at 15 (citing Doc. 16-3 at 65, 76)). Notably, however, Plaintiff only later amended her alleged onset date from January 31, 2013 to January 27, 2014 at the hearing before the ALJ on April 25, 2016. (Doc. 16-3 at 35). Further, Plaintiff's mental health testimony may have been suspect, as the ALJ noted the possibility of exaggeration in symptoms as suspected by the consultative examiner Robert Mastikian, Psy.D. (Doc. 16-3 at 40 (citing Doc. 16-9 at 29) (“Given her presentation during this evaluation when compared to her prior presentation six months ago, it is my professional opinion that Ms. Benear's symptoms may be dramatically overrepresented and very likely to be exaggerated.”)). In addition, the ALJ discussed how Plaintiff's four weeks of vacationing in Hawaii and Alaska were “not necessarily consistent with allegations of disabling cognitive and social impairments” as it suggested a level of functioning consistent with work related tasks. (Id.). Accordingly, the ALJ found that this evidence did “not weigh in favor of finding the claimant has cognitive or social symptoms that require finding limitations in the claimant's residual functional capacity.” (Id. at 41).

         Third, Plaintiff believes the ALJ's failure to “mention any relevant findings or statements in the medical evidence, such as [Plaintiff's] tardiness to the first psychological consultative examination or her need for assistance and support from her mother at mental health appointments, ” is error. (Doc. 24 at 15-16 (citing Doc. 16-8 at 54; Doc. 16-10 at 4, 7)). Although Plaintiff cherry-picks these examples of “relevant findings or statements” which the ALJ did not mention in her final decision, the ALJ did discuss medical evidence when making her findings at step two. (See Doc. 16-3 at 41 (stating that Plaintiff “has consistently presented for medical treatment of physical symptoms without evidence of mental distress or psychotic symptoms” and citing numerous medical records from Banner Del Webb Medical Center, Arizona Neurological Institute, Arizona Pain Specialists, Banner Health Center, and FastMed Urgent Care)). Furthermore, the ALJ's findings as to the first functional area are supported by the opinion of Dr. King, a state agency consulting physician who found that Plaintiff had no restriction in activities of daily living. (Doc. 16-4 at 7).

         Fourth, Plaintiff claims the ALJ erred in assessing the first functional area by failing to explain “how the cited list of activities purportedly corresponds to a mild limitation in daily activities.” (Doc. 24 at 16). According to Plaintiff, the ALJ, instead, “simply lists the activities and asserts that they are consistent with mild limitations.” (Id.). This argument fails, as the ALJ's decision did, indeed, explain how the activities Plaintiff participated in correspond to a mild limitation in the first functional area. Specifically, the ALJ stated that these activities demonstrated that Plaintiff was “able to independently initiate and participate in activities without supervision or direction and, therefore, . . . would not support a finding of greater limitation in this area of function.” (Doc. 16-3 at 40). This analysis is consistent with the Social Security Regulations. See Louis v. Astrue, No. 1:10-CV-00656-SMS, 2011 WL 3568822, at *18 (E.D. Cal. Aug. 12, 2011) (citing 20 C.F.R. Pt. 404, Subpt. P. App. 1, § 12.03(B), which notes that ALJs assess “the extent to which [the claimant] [is] capable of initiating and participating in activities independent of supervision or direction”). Accordingly, the Court does not believe that the ALJ incorrectly assessed Plaintiff's functioning in activities of daily living.

         In the second functional area, social functioning, the ALJ determined that Plaintiff had mild limitation. (Doc. 16-3 at 40). Plaintiff contends that the ALJ erred in its analysis of Plaintiff's social functioning by only citing Plaintiff's ability to interact appropriately with physical consultative examiner Dr. Briggs. (Doc. 24 at 16 (citing Doc. 16-3 at 40)). While the ALJ did cite Dr. Brigg's medical opinion as support for her statement that Plaintiff “interacted appropriately at the consultative examination, ” the ALJ also noted than an examination of the record did not reveal any “evidence of a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships or personal isolation.” (Doc. 16-3 at 40; see also Doc. 16-8 at 48-53). The ALJ's findings as to the second functional area are also consistent with the opinion of Dr. King, who also found that Plaintiff had only mild ...


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