United States District Court, D. Arizona
Honorable Lynnette C. Kimmins United States Magistrate Judge.
Neal Mendick filed this action pursuant to 42 U.S.C. §
405(g) seeking judicial review of a final decision by the
Commissioner of Social Security (Commissioner). (Doc. 1.)
Before the Court are Plaintiff's Opening Brief,
Defendant's Responsive Brief, and Plaintiff's Reply.
(Docs. 19-21.) After Mendick died, in November 2018, his
mother Joan Cutler was substituted as Plaintiff. (Doc. 23.)
The parties have consented to Magistrate Judge jurisdiction.
(Doc. 12.) Based on the pleadings and the administrative
record, the decision of the Commissioner is affirmed.
AND FACTUAL HISTORY
filed an application for Disability Insurance Benefits (DIB)
and Supplemental Security Income (SSI) in March 2014.
(Administrative Record (AR) 257, 266.) He alleged disability
from August 2013. (Id.) Mendick's application
was denied upon initial review (AR 94-128) and on
reconsideration (AR 130-63). A hearing was held on December
15, 2016. (AR 47-93.) Subsequently, the ALJ found that
Mendick was not disabled. (AR 29-38.) The Appeals Council
denied Mendick's request for review. (AR 2.)
was born in 1960 and was 53 years of age at the onset date of
his alleged disability. (AR 257.) Mendick had past relevant
work experience as a home builder and a restaurant cook. (AR
284.) The ALJ found that Mendick had a severe impairment of
bladder cancer. (AR 32.) The ALJ determined Mendick had the
Residual Functional Capacity (RFC) to perform a reduced range
of medium work, could only occasionally climb
ladders/ropes/scaffolds; but could frequently use
ramps/stairs/step-stools, stoop, kneel, crouch, and crawl;
and must avoid concentrated exposure to fumes. (AR 34.) The
ALJ concluded at Step Four, based on the testimony of a
vocational expert, that Mendick could perform his past
relevant work as a cook. (AR 37.)
Commissioner employs a five-step sequential process to
evaluate DIB claims. 20 C.F.R. § 404.1520; see also
Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To
establish disability the claimant bears the burden of showing
he (1) is not working; (2) has a severe physical or mental
impairment; (3) the impairment meets or equals the
requirements of a listed impairment; and (4) claimant's
RFC precludes him from performing his past work. 20 C.F.R.
§ 404.1520(a)(4). At Step Five, the burden shifts to the
Commissioner to show that the claimant has the RFC to perform
other work that exists in substantial numbers in the national
economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th
Cir. 2007). If the Commissioner conclusively finds the
claimant “disabled” or “not disabled”
at any point in the five-step process, he does not proceed to
the next step. 20 C.F.R. § 404.1520(a)(4).
ALJ is responsible for determining credibility, resolving
conflicts in medical testimony, and for resolving
ambiguities.” Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995) (citing Magallanes v.
Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings
of the Commissioner are meant to be conclusive if supported
by substantial evidence. 42 U.S.C. § 405(g). Substantial
evidence is “more than a mere scintilla but less than a
preponderance.” Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999) (quoting Matney v.
Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The
court may overturn the decision to deny benefits only
“when the ALJ's findings are based on legal error
or are not supported by substantial evidence in the record as
a whole.” Aukland v. Massanari, 257 F.3d 1033,
1035 (9th Cir. 2001). This is so because the ALJ “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, 981 F.2d at 1019 (quoting
Richardson v. Perales, 402 U.S. 389, 400 (1971));
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d
1190, 1198 (9th Cir. 2004). The Commissioner's decision,
however, “cannot be affirmed simply by isolating a
specific quantum of supporting evidence.” Sousa v.
Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing
Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.
1989)). Reviewing courts must consider the evidence that
supports as well as detracts from the Commissioner's
conclusion. Day v. Weinberger, 522 F.2d 1154, 1156
(9th Cir. 1975).
argues the ALJ committed two errors: (1) he failed to provide
clear and convincing reasons for rejecting Mendick's
symptom testimony; and (2) he failed to properly weigh the
opinion of examining physician Dr. Jerome Rothbaum.
argues the ALJ failed to provide clear and convincing reasons
to reject Mendick's symptom testimony. In general,
“questions of credibility and resolution of conflicts
in the testimony are functions solely” for the ALJ.
Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007)
(quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th
Cir. 1982)). However, “[w]hile an ALJ may certainly
find testimony not credible and disregard it . . . [the
court] cannot affirm such a determination unless it is
supported by specific findings and reasoning.”
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884-85
(9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d 341,
345-346 (9th Cir. 1995) (requiring specificity to ensure a
reviewing court the ALJ did not arbitrarily reject a
claimant's subjective testimony); SSR 96-7p. “To
determine whether a claimant's testimony regarding
subjective pain or symptoms is credible, an ALJ must engage
in a two-step analysis.” Lingenfelter v.
Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).
“the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying
impairment ‘which could reasonably be expected to
produce the pain or other symptoms alleged.'”
Id. at 1036 (quoting Bunnell, 947 F.2d at
344). The ALJ found Mendick had satisfied part one of the
test by proving an impairment that could produce the symptoms
alleged. (AR 35.) Next, if “there is no affirmative
evidence of malingering, the ALJ can reject the
claimant's testimony about the severity of her symptoms
only by offering specific, clear and convincing reasons for
doing so.” Tommasetti v. Astrue, 533 F.3d
1035, 1039 (9th Cir. 2008) (quoting Smolen v.
Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)).
Here, the ALJ did not make a finding of malingering.
Therefore, to support his discounting of Mendick's
assertions regarding the severity of his symptoms, the ALJ
had to provide clear and convincing, specific reasons.
See Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th
Cir. 2014); Vasquez v. Astrue, 572 F.3d 586, 591
(9th Cir. 2008) (quoting Lingenfelter, 504 F.3d at
April 2014, Mendick completed an Exertional Daily Activities
Questionnaire in which he stated that he took a daily walk,
limited to two miles due to leg pain, and it took about 2
hours; he experienced all the symptoms listed on the form -
pain, fatigue, weakness, dizziness, nausea, diarrhea, fevers,
shortness of breath, and medication side-effects (AR 303); he
could carry at most 25 pounds; he grocery shopped once per
month; he cleaned his own home but it was difficult due to
pain, dizziness, and shortness of breath; he ...