United States District Court, D. Arizona
Honorable Diane J. Humetewa, United States District Judge.
issue is Defendant's denial of Plaintiff's concurrent
applications for Title II Disability Insurance Benefits and
Title XVI Supplement Security Income under the Social
Security Act (“Act”). Plaintiff filed a Complaint
(Doc. 1) seeking judicial review of the denial, and the Court
now considers Plaintiff's Opening Brief (Doc. 19,
“Pl. Br.”), Defendant's Response Brief (Doc.
22, “Def. Br.”), Plaintiff's Reply Brief
(Doc. 25), and the Administrative Record (Doc. 16,
“R.”). Because the Court finds the decision free
of legal error and supported by substantial evidence, it
filed his applications on September 11, 2014, alleging
disability as of August 1, 2011. (R. at 16.) Defendant denied
the applications initially on March 11, 2015 and upon
reconsideration on August 21, 2015. (Id.) Plaintiff
requested a hearing before an administrative law judge
(“ALJ”) which was held on May 26, 2017.
(Id.) On October 2, 2017, the ALJ issued her
decision finding Plaintiff not disabled prior to October 30,
(R. at 15-25), which was upheld by the Appeals Council on
August 29, 2018 (R. at 1-3).
application, Plaintiff stated that the following conditions
limited his ability to work: depression, ADHD, “joint
[rheumatoid arthritis] problems, ” spinal stenosis,
COPD, valley fever, “possible lung cancer, ”
artery disease, “right shoulder problems, ”
perifocal artery disease, hypertension, and neuropathy. (R.
at 241.) At the hearing, Plaintiff testified to having pain
in his neck, back, knees, arms, and shoulders; no strength in
his arms; nerve damage and weakness in his left arm; lung
issues associated with COPD and valley fever; neuropathy in
his feet; toe amputations due to bone infections; and
depression. (R. at 42- 49, 52-54.) Following the hearing, the
ALJ found Plaintiff had “severe” impairments of
“degenerative disc disease with cervical spine
stenosis, degenerative joints disease of the shoulders,
arthritis, diabetes, amputations of multiple toes, COPD,
[and] status post partial left lung removal, ” and
“nonsevere” impairments of “hypertension,
dyslipidemia, and valley fever.” (R. at 18-19.) The ALJ
found that prior to October 30, 2016, Plaintiff retained the
following residual functional capacity
[T]he claimant has the residual functional capacity to
perform less than the full range of sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a). He can lift and carry
10 pounds frequently and 20 pounds occasionally, stand and
walk for 2 hours per 8-hours a day, never climb ladders,
ropes or scaffolds, occasionally climb ramps and stairs,
occasionally kneel, crouch and crawl, and occasionally
perform overhead lifting bilaterally. He can frequently
balance and stoop. He can never tolerate concentrated
exposure to wetness/humidity, concentrated exposure to
pulmonary irritants, or any exposure to dangerous moving
machinery or unprotected heights.
20.) Plaintiff brings this appeal alleging that: (1) the ALJ
erred in failing to consider his umbilical hernia
“severe” and (2) the RFC is not supported by
“substantial evidence” because the ALJ failed to
consider other evidence. (Pl. Br. at 1-2.)
Court has jurisdiction pursuant to 42 U.S.C. §§
405(g), 1383(c)(3), which provide that a reviewing court may
affirm, modify, or reverse the decision of the Commissioner,
with or without remanding the cause for a rehearing. The
district court reviews only those issues raised by the party
challenging the decision. See Lewis v. Apfel, 236
F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set aside
the decision only if it is not supported by substantial
evidence or is based on legal error. Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007). “Substantial
evidence” is more than a scintilla, but less than a
preponderance; it is relevant evidence that a reasonable
person might accept as adequate to support a conclusion
considering the record as a whole. Id.; see also
Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997)
(“[T]he key question is not whether there is
substantial evidence that could support a finding of
disability, but whether there is substantial evidence to
support the Commissioner's actual finding that claimant
is not disabled.”). Even if the decision contains
error, the Court will not reverse the decision where the
error is “harmless” as “inconsequential to
the ultimate nondisability determination” or where the
ALJ's “path may reasonably be discerned, even if
the [ALJ] explains [her] decision with less than ideal
clarity.” Treichler v. Comm'r of Soc.
Sec., 775 F.3d 1090, 1099 (9th Cir. 2014) (citing
Alaska Dept. of Envtl. Conservation v. E.P.A., 540
U.S. 461, 497 (2004)). The Court “must consider the
record as a whole and may not affirm simply by isolating a
specific quantum of supporting evidence.” Orn,
495 F.3d at 630. “Where the evidence is
susceptible to more than one rational interpretation, one of
which supports the ALJ's decision, the ALJ's
conclusion must be upheld.” Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
determine whether a claimant is “disabled” under
the Act, the ALJ engages in a five-step sequential analysis.
See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). For the first four steps, the burden of proof
is on the claimant; at the fifth step, it shifts to the ALJ.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999). If a claimant fails at any step, the analysis ends,
and he is not disabled. First, he must show he is not
presently engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, he
must show a “severe” medically determinable
impairment or combination of impairments.Id.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Third, he
must show that the impairment meets or medically equals an
impairment in Appendix 1 of Subpart P of 20 C.F.R Part 404.
Id. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). However, if the claimant fails step
three, he may still be found disabled at step four by showing
he is unable to perform any past relevant work and by meeting
steps one and two. Id. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). The ALJ determines if
the claimant met step four by assessing the claimant's
RFC. Id. At the fifth and final step, the burden
shifts to the ALJ to show that the claimant is able to
perform other work that exists in the national economy based
on the claimant's RFC, age, education, and work
experience. Id. §§ 404.1520(a)(4)(v),
The ALJ did not err in failing to find his umbilical hernia
alleges the ALJ erred by failing to find his umbilical hernia
“severe” at step two of the disability analysis.
(Pl. Br. at 9.) As such, he maintains the ALJ's finding
of non-disability prior to September 30, 2012 (his date last
insured) is not supported by substantial evidence.
(Id. at 10.)
two is “a de minimis screening device” for
weeding out groundless claims. Webb v. Barnhart, 433
F.3d 683, 687 (9th Cir. 2005); see Bowen v. Yuckert,
482 U.S. 137, 153 (1987). At step two, a claimant must
establish the existence of a medically determinable
impairment by objective medical evidence; a mere diagnosis,
medical opinion, or statement of symptoms will not suffice.
20 C.F.R. §§ 404.1521, 416.921. Once established,
the ALJ then considers whether the impairment, individually
or in combination with other impairments, is
“severe” and expected to last more than twelve
months. 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). An impairment is “severe” if
it “significantly limits [the claimant's] physical
or mental ability to do basic work activities.” 20
C.F.R. §§ 404.1520(c), 416.920(c). ...