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Bedson v. Commissioner of Social Security Administration

United States District Court, D. Arizona

March 13, 2019

Kathleen Anne Bedson, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          Dominic W. Lanza, United Slates District Judge


         Plaintiff Kathleen Anne Bedson (“Bedson”) seeks review under 42 U.S.C. § 405(g) of the final decision of the Acting Commissioner of Social Security (“Commissioner”), which denied her application for disability benefits. For the following reasons, the Court affirms the Commissioner's decision.

         Bedson is a 61-year-old female who previously worked as an accounts payable clerk and alleges she became disabled in October 2013.[1] In May 2014, she filed an application for disability benefits. (A.R. 170-71.) The claim was denied initially on November 4, 2014 (A.R. 104-07) and again upon reconsideration on April 1, 2015 (A.R. 109-111). Bedson then filed a written request for hearing on May 19, 2015. (A.R 112-113.) On January 12, 2017, she appeared and testified at a hearing at which an impartial vocational expert also appeared and testified. (A.R. 38-52.) On March 13, 2017, the ALJ issued a decision that Bedson was not disabled within the meaning of the Social Security Act. (A.R. 18-32.) The Appeals Council denied Bedson's request for review first on August 22, 2017 (A.R. 7-11) and then again on December 14, 2017 after considering additional information (A.R. 1-6). At that point, the ALJ's decision became the Commissioner's final decision.


         The 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 omitted).

         “[H]armless 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 1121.

         To 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.


         At step one, the ALJ found that Bedson met the insured status requirements of the Social Security Act through March 31, 2018 and had not engaged in substantial gainful activity since October 15, 2013. (A.R. 23.) At step two, the ALJ found that Bedson had the following severe impairments: lumbar spondylosis and ulnar neuropathy. (A.R. 24.) The ALJ acknowledged that the record also contained evidence of hypothyroidism, gastroesophageal reflux disease, hypertension, and misophonia, as well as the mental impairments of anxiety, depression, and attention deficit hyperactivity disorder, but found these were not severe impairments. (Id.) At step three, the ALJ determined that Bedson did not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. (A.R. 26-27.) At step four, the ALJ found that Bedson had the RFC to perform the full range of sedentary work as defined in 20 C.F.R. 404.1567(a) and was capable of performing her past relevant work as an accounts payable clerk. (A.R. 27-32.) Therefore, the ALJ did not reach step five and concluded Bedson was not disabled. (A.R. 31-32.)

         Bedson has now filed a sprawling pro se brief that purports to raise nineteen issues. (Doc. 21 at 2.) The Court has endeavored to give this brief a liberal construction, and it appears Bedson seeks to challenge the ALJ's decision on six grounds: (1) the ALJ erred during step two in evaluating her misophonia; (2) the ALJ did not properly weigh her symptom testimony; (3) the ALJ did not properly weigh the opinions of Physician's Assistant Stephanie Flaherty, Dr. Martin Rubin, M.D., Dr. Allen W. Rohe, Au.D., Dr. John D. Mather, Ph.D., and the state agency consultants; (4) the ALJ did not adequately develop the record; (5) the ALJ erred at step four by excluding more restrictive vocational hypotheticals from his determination and by not applying the Grids; and (6) the ALJ was biased. (Doc. 21.) The Commissioner similarly construes Bedson's brief as raising these six overarching claims of error (plus an argument concerning the appropriate scope of any remand order). (Doc. 25 at 1-2.)

         As explained below, the Court concludes the ALJ's decision was supported by substantial evidence and was not based on legal error.


         I. Whether The ALJ Improperly Classified Bedson's Misophonia As A Non-Serious Impairment During Step Two

         Bedson appears to argue the ALJ erred when evaluating her misophonia during step two. (Doc. 21 at 7-8, 15.) The ALJ acknowledged that Bedson had been treated for misophonia but concluded it did not qualify as a “severe” impairment because it was “being managed medically, and the longitudinal medical record shows th[is] condition[] did not cause any ongoing functional limitations.” (A.R. 24.) The ALJ further found that “no aggressive treatment was recommended or anticipated for th[is] condition[].” (Id.)

         At step two, the ALJ considers whether the claimant has a “severe disability, ” 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 minimal effect on an individuals [sic] ability to work.'” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted).

         Ninth Circuit law is not a model of clarity concerning how to evaluate claims of step-two error. Some cases suggest that, although it is error for an ALJ to fail to characterize a particular impairment as “severe” during step two, the error can be disregarded as harmless if the ALJ properly addresses the impairment during later steps. See, e.g., Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (“Even assuming that the ALJ erred in neglecting to list the bursitis at Step 2, any error was harmless. . . . The decision reflects that the ALJ considered any limitations posed by the bursitis at Step 4. As such, any error that the ALJ made in failing to include the bursitis at Step 2 was harmless.”); Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (“[T]he ALJ did not find that Burch's obesity was a ‘severe' impairment . . . . Assuming without deciding that this omission constituted legal error, it could only have prejudiced Burch in step three (listing impairment determination) or step five (RFC) because the other steps, including this one, were resolved in her favor.”). Other decisions suggest that a claimant can't complain about an ALJ's failure to identify a particular impairment as “severe” during step two so long as the ALJ determined the claimant also had other impairments that so qualify. Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (citation omitted) (“Buck misunderstands the purpose of step two in the analysis. Step two is merely a threshold determination meant to screen out weak claims. It is not meant to identify the impairments that should be taken into account when determining the RFC. . . . Moreover, step two was decided in Buck's favor after both hearings. He could not possibly have been prejudiced.”).

         Given these difficult-to-reconcile precedents, coupled with the ALJ's determination that Bedson suffers from other conditions that do qualify as severe impairments (i.e., lumbar spondylosis and left elbow ulnar neuropathy), the Court will decline to definitively resolve whether the ALJ “erred” during step two by failing to also characterize Bedson's misophonia as a severe impairment. The key issue is whether the ALJ properly evaluated the evidence and testimony concerning her misophonia during later steps-an issue that is addressed below.

         II. Whether the ALJ Erred When Rejecting Bedson's Symptom Testimony

         A. Legal Standard

         “In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina, 674 F.3d at 1112. “First, the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.” Id. (citations and internal quotation marks omitted). The ALJ found that Bedson had satisfied this first step. (A.R. 28 [“[T]he undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms . . . .”].)

         If the first step is satisfied, and “there is no evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.” Molina, 674 F.3d at 1112 (citations and internal quotation marks omitted). Here, the ALJ did not find there was evidence of malingering, so he was required to provide specific, clear and convincing reasons to reject Bedson's testimony.

         “A finding that a claimant's testimony is not credible must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citation and quotation marks omitted). “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (citation omitted); see also Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[T]he ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony.”). “[P]roviding a summary of medical evidence in support of a residual functional capacity finding is not the same as providing clear and convincing reasons for finding the claimant's symptom testimony not credible.” Brown-Hunter, 806 F.3d at 494. Additionally, the ALJ must “elaborate on which daily activities conflicted with which part of Claimant's testimony.” Burrell, 775 F.3d at 1138.

         B. Bedson's Testimony

         At the beginning of the hearing on January 12, 2017, the ALJ asked Bedson's counsel if there was “anything to add to the brief.” (A.R. 41.) In response, Bedson's counsel stated that Bedson wished to add a claim that she was disabled on account of her misophonia. (A.R. 41-42.) Counsel further stated that, although this condition “was not specifically . . . mentioned . . . by name” in Bedson's brief, it was discussed in the medical records appearing at 14F and 16F. (Id.)

         Following this clarification, Bedson testified. (A.R. 42-50.) During her direct examination, Bedson stated that she'd held “21 or 22” jobs in the previous 15 years and claimed that her misophonia was the reason why she couldn't hold a job. (A.R. 43-44.) However, when asked to provide further details on this topic, Bedson's only example was a job where her responsibilities were “tak[ing] calls from the billables” and “always talking on the phone” and she was fired “for insubordination or uncooperativeness” because she “blew up” at her employer after her request for a carpeted, partitioned office was denied. (A.R. 45-46.)

         Next, Bedson was asked to describe the symptoms of her anxiety disorder. (A.R. 46.) She responded by saying they were similar to the symptoms of panic disorder. (Id.)

         Next, Bedson was asked to describe the symptoms of her neck and back pain. (Id.) In response, she stated that “my SI joint causes pain when I move. It's a loose joint and if I walk around for maybe 20 minutes it starts to be very painful, I get real stiff, I can hardly even sit down after that.” (Id.) When asked how long she can sit, Bedson stated that she can usually sit without pain when there are no people around, but if other people are present, “I get really anxious and irritated and angry and I ...

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