United States District Court, D. Arizona
Brian S. Sharp, Plaintiff,
Commissioner of Social Security Administration, Defendant.
Dominic W. Lanza, United Slates District Judge
Brian S. Sharp (“Sharp”) seeks review under 42
U.S.C. § 405(g) of the final decision of the Acting
Commissioner of Social Security (“Commissioner”),
which denied his application for disability benefits. For the
following reasons, the Court finds that the administrative
law judge's (“ALJ”) decision was based on
reversible legal error and remands for further proceedings.
is a 53-year-old man who previously worked as a repairer and
construction worker and alleges he became disabled in
February 2013. In April 2013, Sharp filed an application
for disability benefits. (A.R. 137-38.) The claim was denied
on August 7, 2013 (A.R. 80-83), and again upon
reconsideration on December 13, 2013 (A.R. 89-91). Sharp then
filed a written request for a hearing on January 24, 2014.
(A.R. 92-93.) On June 23, 2015, Sharp appeared and testified
at a video hearing at which an impartial vocational expert
also appeared and testified by telephone. (A.R. 43-62.) On
September 8, 2015, the ALJ issued a decision that Sharp was
not disabled within the meaning of the Social Security Act.
(A.R. 26-38.) The ALJ's decision became the
Commissioner's final decision when the Appeals Council
denied Sharp's request for review on March 17, 2017.
Court addresses only the issues raised by the claimant in the
appeal from the ALJ's decision. Lewis v. Apfel,
236 F.3d 503, 517 n.13 (9th Cir. 2001). “The ALJ is
responsible for determining credibility, resolving conflicts
in medical testimony, and resolving ambiguities.”
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001), as amended on reh'g (Aug. 9, 2001). The
Court should uphold the ALJ's decision “unless it
contains legal error or is not supported by substantial
evidence.” Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007). “Substantial evidence is more than a
mere scintilla but less than a preponderance.”
Id. Put another way, “[i]t is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (citation omitted).
The Court should uphold the ALJ's decision “[w]here
evidence is susceptible to more than one rational
interpretation, ” but the Court “must consider
the entire record as a whole and may not affirm simply by
isolating a specific quantum of supporting evidence.”
Id. (citations and internal quotation marks
error principles apply in the Social Security Act
context.” Molina v. Astrue, 674 F.3d 1104,
1115 (9th Cir. 2012). “[A]n ALJ's error is harmless
where it is inconsequential to the ultimate nondisability
determination.” Id. (citations and internal
quotation marks omitted). The Court must “look at the
record as a whole to determine whether the error alters the
outcome of the case.” Id. Importantly,
however, the Court may not uphold an ALJ's decision on a
ground not actually relied on by the ALJ. Id. at
determine whether a claimant is disabled for purposes of the
Social Security Act, the ALJ follows a five-step process. 20
C.F.R. § 404.1520(a). The claimant bears the burden of
proof on the first four steps, and the burden shifts to the
Commissioner at step five. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ
determines whether the claimant is engaging in substantial
gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so,
the claimant is not disabled and the inquiry ends.
Id. At step two, the ALJ determines whether the
claimant has a “severe” medically determinable
physical or mental impairment. Id. §
404.1520(a)(4)(ii). If not, the claimant is not disabled and
the inquiry ends. Id. At step three, the ALJ
considers whether the claimant's impairment or
combination of impairments meets or medically equals an
impairment listed in Appendix 1 to Subpart P of 20 C.F.R. pt.
404. Id. § 404.1520(a)(4)(iii). If so, the
claimant is automatically found to be disabled. Id.
If not, the ALJ proceeds to step four. At step four, the ALJ
assesses the claimant's residual functional capacity
(“RFC”) and determines whether the claimant is
capable of performing past relevant work. Id. §
404.1520(a)(4)(iv). If so, the claimant is not disabled and
the inquiry ends. Id. If not, the ALJ proceeds to
the fifth and final step, where he determines whether the
claimant can perform any other work based on the
claimant's RFC, age, education, and work experience.
Id. § 404.1520(a)(4)(v). If so, the claimant is
not disabled. Id. If not, the claimant is disabled.
one, the ALJ found Sharp met the insured status requirements
of the Social Security Act through March 31, 2016 and had not
engaged in substantial gainful activity since January 1,
2011, the alleged onset date. (A.R. 31.) At step two, the ALJ
found that Sharp had the following severe impairments:
diabetes and degenerative disc disease (DDD) of the back.
(A.R. 31.) The ALJ also found that Sharp had the following
non-severe impairments: coronary artery disease and obesity.
(A.R. 31-32.) At step three, the ALJ determined that Sharp
did not have an impairment or combination of impairments that
meets or medically equals the severity of a listed
impairment. (A.R. 32.) At step four, the ALJ found that Sharp
had the residual functional capacity to perform medium work
with the following limitations: limited to occasional
exposure to heights, moving machinery, and temperature
extremes. (A.R. 32-36.) The ALJ further found that Sharp was
unable to perform any past relevant work. (A.R. 36.) At step
five, the ALJ found that, considering Sharp's age,
education, work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the
national economy that Sharp can perform, including hand
packager, order filler, and dishwasher/janitor. (A.R. 37-38.)
argues that the ALJ's decision is defective for three
reasons: (1) the ALJ erred at step two in failing to consider
Sharp's attacks of cardiac arrhythmia; (2) the ALJ erred
at step four in rejecting Sharp's symptom testimony; and
(3) the ALJ erred at step four in determining Sharp's RFC
without reference to nonexertional limitations from
Sharp's cardiac arrhythmia. (Doc. 13.)
explained below, the Court agrees the ALJ committed
reversible error during step four.
I. Whether the ALJ Erred at Step Two in Failing to
Consider Sharp's Attacks of Cardiac Arrhythmia
argues that the ALJ erred in failing to consider his attacks
of cardiac arrythmia at step two. (Doc. 13 at 1, 11.)
two, the ALJ considers whether the claimant has a
“severe” impairment, 20 C.F.R. §
404.1520(a)(4)(ii), defined as “any impairment or
combination of impairments which significantly limits [the
claimant's] physical or mental ability to do basic work
activities, ” id. § 404.1520(c).
“An impairment or combination of impairments can be
found ‘not severe' only if the evidence establishes
a slight abnormality that has ‘no more than a ...