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Sullivan v. Commissioner of Social Security Administration

United States District Court, D. Arizona

January 7, 2020

Mark David Sullivan, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          Honorable Diane J. Humetewa, United States District Judge.

         At 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 affirms.

         I. BACKGROUND

         Plaintiff 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, 2016[1] (R. at 15-25), which was upheld by the Appeals Council on August 29, 2018 (R. at 1-3).

         In his 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[2] (“RFC”):

[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.

         (R. at 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.)


         This 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).

         To 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.[3]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), 416.920(a)(4)(v).

         III. ANALYSIS

         A. The ALJ did not err in failing to find his umbilical hernia “severe.”

         Plaintiff 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.)

         Step 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). ...

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