United States District Court, D. Arizona
ORDER
Dominic W. Lanza, United Slates District Judge
INTRODUCTION
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.
LEGAL
STANDARD
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.
BACKGROUND
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.
ANALYSIS
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
...