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Prear v. Berryhill

United States District Court, D. Arizona

July 17, 2018

Antoinette Prear, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


          James A. Teilborg Senior United States District Judge.

         Pending before the Court is Plaintiff Antoinette Prear's (“Plaintiff”) appeal from the Social Security Commissioner's (the “Commissioner”) denial of her application for a period of disability, disability insurance benefits, and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq., 1381 et seq. (2015). (Doc. 16 at 1.)[1] Plaintiff argues that the Administrative Law Judge (the “ALJ”) erred in his evaluation of the medical opinion evidence and his evaluation of Plaintiff's subjective symptom testimony. The Court now rules on Plaintiff's appeal.

         I. Background

         The parties are familiar with the background information in this case, and it is summarized in the ALJ's decision. (See Doc. 13-3 at 23, 25-29.) Accordingly, the Court will not restate such information here.

         II. Legal Standard

         The ALJ's denial of disability benefits may be set aside “only when the ALJ's findings are based on legal error or not supported by substantial evidence in the record.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). “‘Substantial evidence' means more than a mere scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

         “The inquiry here is whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). When considering the evidence, “a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.'” Id. (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). “If the evidence can reasonably support either affirming or reversing the [ALJ]'s conclusion, the court may not substitute its judgment for that of the [ALJ].” Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). This necessarily means that “[i]f the evidence can support either outcome, the Commissioner's decision must be upheld.” Benton, 331 F.3d at 1035.

         It is a “fundamental rule of administrative law” that a reviewing court, in dealing with a judgement which an administrative agency alone is authorized to make, may only make its decision based upon evidence discussed by the ALJ. Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947); see Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Thus, the Court's review is constrained only to “the reasons the ALJ asserts, ” and the evidence supporting those reasons. See Connett, 340 F.3d at 874; Frank v. Schultz, 808 F.3d 762, 764 (9th Cir. 2015). Similarly, when challenging an ALJ's decision, “issues which are not specifically and distinctly argued and raised in a party's opening brief are waived.” Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1110 n.1 (9th Cir. 2000) (en banc), vacated and remanded on other grounds, 535 U.S. 391 (2002)); see also Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7 (9th Cir. 2009) (applying the principle to Social Security appeals). Thus, the Court “will not manufacture arguments for an appellant.” Arpin, 261 F.3d at 919 (citation omitted).

         A. Definition of a Disability

         A claimant can qualify for Social Security disability benefits only if she can show that, among other things, she is disabled. 42 U.S.C. § 423(a)(1)(E). A disability is defined as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A).

         A person is disabled only if her “physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).

         B. The Five-Step Evaluation Process

         The Social Security regulations set forth a five-step sequential evaluation process for evaluating a claim of disability. 20 C.F.R. § 404.1520(a)-(f); see also Benton, 331 F.3d at 1034. Finding the claimant “disabled” or “not disabled” at any step ends the inquiry. 20 C.F.R. § 404.1520(a)(4). If such a finding cannot be made at a particular step, then the ALJ moves on to the next step. Id. The claimant bears the burden of proof for steps one to four, but the burden shifts to the Commissioner for step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

         At the first step, the ALJ determines if the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. Id.

         At the second step, the ALJ considers the medical severity of the claimant's impairments. Id. § 404.1520(a)(4)(ii). “If [the claimant] do[es] not have a severe medically determinable physical or mental impairment . . . we will find that [the claimant is] not disabled.” Id. A “severe impairment” is one that “significantly limits [the claimant's] physical or mental ability to do basic work activities.” Id. § 404.1520(c). Basic work activities are “the abilities and aptitudes necessary to do most jobs.” Id. § 404.1522(b). Examples of basic work activities include:

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing, and speaking; (3) Understanding, carrying out, and remembering simple instructions; (4) Use of judgement; (5) Responding appropriately to supervision, co-workers and usual work situations; and (6) Dealing with changes in a routine work setting.

Id. § 404.1522(b)(1)-(6).

         Additionally, unless the claimant's impairment is expected to result in death, “it must have lasted or be expected to last for a continuous period of at least 12 months” for the claimant to be found disabled. Id. § 404.1509 (incorporated by reference in id. § 404.1520(a)(4)(ii)).

         At the third step, having found a medically determinable impairment, the ALJ considers the severity of the claimant's impairment. Id. § 404.1520(a)(4)(iii). This consideration requires the ALJ to determine if the claimant's impairment “meets or equals” one of the impairments listed in the regulations. Id. If the impairment meets or equals a listed impairment, then the ALJ will find that the claimant is disabled. Id. If the claimant's impairment does not meet or equal a listed impairment, then the ALJ will assess the claimant's “residual functional capacity based on all the relevant medical and other evidence in [the claimant's] case record.” Id. § 404.1520(e). In assessing the claimant's “residual functional capacity” (“RFC”), the ALJ will consider the claimant's “impairment(s), and any related symptoms, such as pain, [that] may cause physical and mental limitations that affect what [the claimant] can do in a work setting. [The claimant's] residual functional capacity is the most [the claimant] can still do despite [the claimant's] limitations.” Id. § 404.1545(a)(1).

         At the fourth step, the ALJ considers the claimant's ability to perform her “past relevant work.” Id. § 404.1520(a)(4)(iv). To do this the ALJ compares the claimant's residual function capacity with the physical and mental demands of the claimant's past relevant work. Id. § 404.1520(f). If the claimant can still perform her past relevant work, the ALJ will find that the claimant is not disabled. Id. § 404.1520(a)(4)(iv).

         At the fifth and last step, the ALJ considers if the claimant can “make an adjustment to other work.” Id. § 404.1520(a)(4)(v). In making this determination, the ALJ considers the claimant's residual functional capacity and the claimant's age, education, and work experience. Id. If the ALJ finds that the claimant can make an adjustment to other work, then the claimant is not disabled. Id. If the ALJ finds that the claimant cannot make an adjustment to other work, then the claimant is disabled.

         In making a determination on the claimant's disability through the five-step process, the ALJ must “consider all evidence in [the claimant's] case record.” Id. § 404.1520(a)(3). This evidence includes medical opinions, records, self-reported symptoms, and third-party reporting. See Id. §§ 404.1527, 404.1529; SSR 06-3p, 71 Fed. Reg. 45593-03 (Aug. 9, 2006).

         C. The ALJ's Evaluation Under the Five-Step Process

         The ALJ found that Plaintiff had not engaged in substantial gainful activity since August 1, 2014 and that Plaintiff suffered from two severe impairments, [2] satisfying the first and second steps of the process. (Doc. 13-3 at 25.)[3] Under the third step, the ALJ found that Plaintiff does not have “an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments” in the Social Security regulations that automatically result in a finding of disability. (Id. at 26.)

         The ALJ then conducted the RFC determination with “careful consideration of the entire record.” (Id. at 27.) The ALJ determined that Plaintiff has the RFC to “perform a wide range of light work . . . except the claimant is limited to lifting-carrying 20 pounds occasionally and 10 pounds frequently; is limited to sitting six hours and standing-walking six hours in an eight-hour workday; and must work in a climate controlled environment out of heat.” (Id.)

         At step four, the ALJ compared Plaintiff's RFC with the physical and mental demands of Plaintiff's past relevant work. (Id. at 29.) The ALJ determined that Plaintiff “is capable of performing past relevant work as an insurance agent . . ., medical secretary . . ., and admissions representative.” (Id.) The ALJ went on to state that “[t]his work does not require the ...

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