United States District Court, D. Arizona
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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