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Cutler v. Saul

United States District Court, D. Arizona

August 16, 2019

Joan Cutler, Plaintiff,
v.
Andrew Saul, Defendant.

          ORDER

          Honorable Lynnette C. Kimmins United States Magistrate Judge.

         Plaintiff 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.

         PROCEDURAL AND FACTUAL HISTORY

         Mendick 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.)

         Mendick 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.)

         STANDARD OF REVIEW

         The Commissioner employs a five-step sequential process to evaluate DIB claims.[1] 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).

         “The 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).

         DISCUSSION

         Plaintiff 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.

         Mendick's Symptom Testimony

         Plaintiff 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).

         Initially, “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 1036).

         In 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 ...


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