Boyd v. Colvin

Filing 25

ORDER - IT IS THEREFORE ORDERED affirming the decision of the Commissioner of Social Security. The Clerk of Court shall enter judgment accordingly. (See document for further details). Signed by Magistrate Judge Eileen S Willett on 5/22/15. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-14-08066-PCT-ESW

Shawn Boyd,

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Plaintiff,
ORDER

v.
Carolyn W. Colvin, Commissioner of the
Social Security Administration,

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Defendant.

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Pending before the Court is Plaintiff Shawn Boyd’s (“Plaintiff”) appeal of the
Social Security Administration’s (“Social Security”) denial of his claim for disability
insurance benefits.

Plaintiff filed his Title II Social Security Disability Insurance

application in April 2010, alleging disability beginning December 20, 2008.
This Court has jurisdiction to decide Plaintiff’s appeal pursuant to 42 U.S.C. §
405(g). Under 42 U.S.C. § 405(g), the Court has the power to enter, based upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the case for
a rehearing.

Both parties have consented to the exercise of U.S. Magistrate Judge

jurisdiction. 1 (Doc. 15). After reviewing the Administrative Record (“A.R.”), Plaintiff’s

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This case was reassigned to Hon. Eileen S. Willett on November 14, 2014.

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Opening Brief (Doc. 20), and Defendant’s Response Brief (Doc. 23), 2 the Court finds that
the Administrative Law Judge’s (“ALJ”) decision is supported by substantial evidence
and is free of harmful legal error. The decision is therefore affirmed.

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I. LEGAL STANDARDS
A. Disability Analysis: Five-Step Evaluation
The Social Security Act provides for disability insurance benefits to those who
have contributed to the Social Security program and who suffer from a physical or mental
disability. 42 U.S.C. § 423(a)(1). To be eligible for benefits, the claimant must show that
he or she suffers from a medically determinable physical or mental impairment that
prohibits him or her from engaging in any substantial gainful activity. The claimant must
also show that the impairment is expected to cause death or last for a continuous period
of at least 12 months. 42 U.S.C. § 423(d)(1)(A).
To decide if a claimant is entitled to benefits, an ALJ conducts an analysis
consisting of five questions, which are considered in sequential steps. 20 C.F.R. §
404.1520(a). The claimant has the burden of proof regarding the first four steps: 3

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Step One: Is the claimant engaged in “substantial gainful
activity”? If so, the analysis ends and disability benefits are
denied. Otherwise, the ALJ proceeds to step two.

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Step Two: Does the claimant have a medically severe
impairment or combination of impairments? A severe
impairment is one which significantly limits the claimant’s
physical or mental ability to do basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe
impairment or combination of impairments, disability benefits
are denied at this step. Otherwise, the ALJ proceeds to step
three.

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Step Three: Is the impairment equivalent to one of a number
of listed impairments that the Commissioner acknowledges

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Plaintiff did not file a Reply brief.

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Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).
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are so severe as to preclude substantial gainful activity? 20
C.F.R. § 404.1520(d). If the impairment meets or equals one
of the listed impairments, the claimant is conclusively
presumed to be disabled. If the impairment is not one that is
presumed to be disabling, the ALJ proceeds to the fourth step
of the analysis.

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Step Four: Does the impairment prevent the claimant from
performing work which the claimant performed in the past?
If not, the claimant is “not disabled” and disability benefits
are denied without continuing the analysis. 20 C.F.R. §
404.1520(e). Otherwise, the ALJ proceeds to the last step.

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If the analysis proceeds to the final question, the burden of proof shifts to the
Commissioner: 4

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Step Five: Can the claimant perform other work in the
national economy in light of his or her age, education, and
work experience? The claimant is entitled to disability
benefits only if he or she is unable to perform other work. 20
C.F.R. § 404.1520(f). Social Security is responsible for
providing evidence that demonstrates that other work exists in
significant numbers in the national economy that the claimant
can do, given the claimant’s residual functional capacity, age,
education, and work experience. Id.

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B. Standard of Review Applicable to ALJ’s Determination
The Court must affirm an ALJ’s decision if it is supported by substantial evidence
and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial
evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197,
229 (1938)). It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id.
In determining whether substantial evidence supports the ALJ’s decision, the
Court considers the record as a whole, weighing both the evidence that supports and
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Parra, 481 F.3d at 746.
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detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient
evidence to support the ALJ’s determination, the Court cannot substitute its own
determination. See Morgan v. Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th
Cir.1999) (“Where the evidence is susceptible to more than one rational interpretation, it
is the ALJ's conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750
(9th Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving
conflicts, ambiguity, and determining credibility. Magallanes, 881 F.2d at 750; see also
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court must also consider the harmless error doctrine when reviewing an
ALJ’s decision. This doctrine provides that an ALJ’s decision need not be remanded or
reversed if it is clear from the record that the error is “inconsequential to the ultimate
nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there
remains substantial evidence supporting the ALJ’s decision and the error “does not
negate the validity of the ALJ’s ultimate conclusion”) (citations omitted).
II. PLAINTIFF’S APPEAL
A. Procedural Background
Plaintiff, who was born in 1977, has experience working as an account manager,
furniture deliverer, pizza deliverer, casino host, ticket seller, and coin machine repairer.
(A.R. 65-66). Plaintiff alleges that on December 20, 2008, at the age of 30, he became
unable to work due to Meniere’s disease. (A.R. 72, 96).
Plaintiff filed his initial application in April 2010 (A.R. 156), which Social
Security denied on November 16, 2010. (A.R. 110). On June 10, 2011, upon Plaintiff’s
request for reconsideration, Social Security affirmed the denial of Plaintiff’s application.
(A.R. 117). Plaintiff then requested a hearing before an ALJ. (A.R. 124). The ALJ held
a hearing on November 13, 2012, during which Plaintiff was represented by an attorney.
(A.R. 45-70). In his December 17, 2012 decision, the ALJ found that Plaintiff is not
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disabled. (A.R. 1-6). The Appeals Council denied Plaintiff’s request for review, making
the ALJ’s decision the final decision of the Social Security Commissioner. (A.R. 1-6).
On April 18, 2014, Plaintiff filed a Complaint (Doc. 1) pursuant to 42 U.S.C. § 405(g)
requesting judicial review and reversal of the ALJ’s decision.
B. The ALJ’s Application of the Five-Step Disability Analysis
The ALJ completed all five steps of the disability analysis before finding that
Plaintiff is not disabled and entitled to disability benefits.
1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Plaintiff has not engaged in substantial gainful activity
since December 20, 2008, the alleged disability onset date. (A.R. 13). Neither party
disputes this determination.
2. Step Two: Presence of Medically Severe Impairment/Combination
of Impairments
The ALJ found that Plaintiff has the following impairments that are severe when
they are considered in combination: (i) Meniere’s disease with dizziness, vertigo, and
imbalance; (ii) paroxysmal supraventricular tachycardia with recurrent arrhythmias; and
(iii) an anxiety disorder, not otherwise specified (20 C.F.R. 404.1520 (c)). (A.R. 13).
This determination is undisputed.
3. Step Three: Presence of Listed Impairment(s)
The ALJ stated that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 of the Social Security regulations. (A.R. 13-15). Neither party
disputes the ALJ’s determination at this step.
4. Step Four: Capacity to Perform Past Relevant Work
The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to
perform sedentary work as defined in 20 C.F.R. §

404.1567(a), subject to several

restrictions. (A.R. 15). The ALJ assessed that Plaintiff is limited to unskilled work and
is unable to lift any more than ten pounds occasionally. In addition, the ALJ found that
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Plaintiff is restricted from climbing, crawling, or kneeling, and may only occasionally
crouch or squat. Finally, Plaintiff is restricted from exposure to unprotected heights and
driving. (Id.).
Based on the RFC, the ALJ determined that Plaintiff is unable to perform his past
relevant work. (A.R. 19). Plaintiff disputes the ALJ’s assessed RFC, arguing that the
ALJ mischaracterized and improperly weighed the evidence. Plaintiff also argues that
the ALJ failed to fully and fairly develop the record.
5. Step Five: Capacity to Perform Other Work
At the November 2012 hearing, a vocational expert (“VE”) testified that given
Plaintiff’s assessed RFC, age, work experience, and education level, Plaintiff would be
able to work the unskilled jobs of document preparer, surveillance monitor, and telephone
operator. The ALJ adopted the VE’s testimony and found that the jobs identified by the
VE exist in significant numbers in the national economy. (A.R. 20).
Plaintiff asserts that there are an insignificant number of document preparer,
surveillance monitor, and telephone operator jobs existing in the State of Arizona.
Plaintiff argues that the ALJ thereby failed to meet the burden at step five by establishing
that Plaintiff can perform other work existing in significant numbers.
C. Plaintiff’s Challenge to the ALJ’s Analysis at Step Four

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1. The ALJ Did Not Mischaracterize the Evidence in Discrediting
Plaintiff’s Testimony

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When evaluating the credibility of a plaintiff’s testimony regarding subjective pain

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or symptoms, the ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d

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586, 591 (9th Cir. 2009). In the first step, the ALJ must determine whether the claimant

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has presented objective medical evidence of an underlying impairment “which could

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reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v.

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Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The plaintiff does not have to show that the

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impairment could reasonably be expected to cause the severity of the symptoms. Rather,

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a plaintiff must only show that it could have caused some degree of the symptoms.
Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
If a plaintiff meets the first step, and there is no evidence of malingering, the ALJ
can only reject a plaintiff’s testimony about the severity of his or her symptoms by
offering specific, clear, and convincing reasons. Lingenfelter, 504 F.3d at 1036. The
ALJ cannot rely on general findings. The ALJ must identify specifically what testimony
is not credible and what evidence undermines the plaintiff’s complaints. Berry v. Astrue,
622 F.3d 1228, 1234 (9th Cir. 2010). In weighing a plaintiff’s credibility, the ALJ can
consider many factors including: a plaintiff’s reputation for truthfulness, prior
inconsistent statements concerning the symptoms, unexplained or inadequately explained
failure to seek treatment, and the plaintiff’s daily activities. Smolen, 80 F.3d at 1284; see
also 20 C.F.R. §

404.1529(c)(4) (Social Security must consider whether there are

conflicts between a claimant’s statements and the rest of the evidence). In addition,
although the lack of medical evidence cannot form the sole basis for discounting pain
testimony, it is a factor that the ALJ can consider in his or her credibility analysis. Burch
v. Barnhart, 400 F.3d 676 (9th Cir. 2005); see also 20 C.F.R. 404.1529(c); Rollins v.
Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (while subjective pain testimony cannot be
rejected on the sole ground that it is not fully corroborated by objective medical evidence,
the evidence is still a relevant factor in determining the severity of the claimant’s pain
and its disabling effects).
Here, Plaintiff argues that the ALJ misinterpreted the evidence when evaluating
Plaintiff’s credibility.

Plaintiff argues that the ALJ erroneously stated that Plaintiff

alleged debilitating pain. (Doc. 20 at 4). In his decision, the ALJ stated that “I conclude
that [Plaintiff’s] allegations of debilitating pain and disabling functional limitations are
not fully credible.” (A.R. 19). While it is correct that Plaintiff alleged debilitating
dizziness and fatigue, not debilitating pain, Plaintiff must show that the ALJ’s error is
harmful. “The burden is on the party claiming error to demonstrate not only the error, but

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also that it affected his “substantial rights,” which is to say, not merely his procedural
rights.” Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012).
The evaluation of Plaintiff’s credibility is discussed in Section 5 of the ALJ’s
decision. (A.R. 36). The ALJ’s reasons for rejecting Plaintiff’s symptom testimony are
as follows:
1. The ALJ found that Plaintiff’s daily activities are not as limited as expected
given Plaintiff’s complaints of disabling symptoms. (A.R. 19). For example, evidence in
the record indicates that Plaintiff drives his wife to school every day and takes care of his
two young children. Plaintiff also goes to church every week, goes to the grocery store,
and performs household chores. In addition, Plaintiff rides a stationary bike three times
weekly for about five to ten minutes. See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th
Cir. 1990) (upholding denial of disability benefits where claimant could “take care of her
personal needs, prepare easy meals, do light housework, and shop for some groceries”);
see also Molina, 674 F.3d at 1113 (“Even where [daily] activities suggest some difficulty
functioning, they may be grounds for discrediting the claimant's testimony to the extent
that they contradict claims of a totally debilitating impairment.”).
2. The ALJ noted that Plaintiff stated that he stopped working due to a businessrelated layoff rather than because of his impairments. 5 (A.R. 19). A claimant’s work
record is a proper consideration in weighing Plaintiff’s credibility. Smolen, 80 F.3d at
1284-85 (stating that a claimant’s work record is one of the factors an ALJ is to consider
in weighing a claimant’s credibility).
3.

The ALJ also found that Plaintiff’s demeanor did not support Plaintiff’s

allegations. (A.R. 19). See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (an ALJ’s

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Contrary to Plaintiff’s assertion, the ALJ did not mischaracterize the evidence in
making this finding. Plaintiff’s last day of employment was December 20, 2008, where
Plaintiff worked as a slot service host. (A.R. 187). At the November 13, 2012 hearing,
the ALJ asked “How come you stopped working for the casino in 2008?” (A.R. 54).
Plaintiff responded “I was later laid off from that job due to the economy.” (Id.). The
evaluation by Doris Javine, Ph.D. also reported that Plaintiff was laid off due to the
economy. (A.R. 284). Dr. Oluyemisi Olubi also reported that Plaintiff was laid off due
to the economy in December 2008. (A.R. 332).
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personal observations may be used in “the overall evaluation of the credibility of the
individual’s statements”).
The above reasons provided by the ALJ for discrediting Plaintiff’s testimony are
specific, clear, convincing, and are supported by substantial evidence in the record. Any
error in the ALJ’s reference to “allegations of debilitating pain” is harmless as (i) the ALJ
provided other proper reasons for rejecting Plaintiff’s symptom testimony and (ii) the
error would not alter the validity of the ALJ’s ultimate nondisability determination. See
Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162–63 (9th Cir. 2008).
2. The ALJ Properly Weighed the Medical Records
In weighing medical source opinions in Social Security cases, there are three
categories of physicians: (i) treating physicians, who actually treat the claimant; (2)
examining physicians, who examine but do not treat the claimant; and (3) non-examining
physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). Generally, more weight should be given to a treating physician’s
opinion than to the opinion of a non-treating physician. Id. An ALJ cannot reject a
treating physician’s opinion in favor of another physician’s opinion without first
providing specific and legitimate reasons that are supported by substantial evidence, such
as finding that a treating physician’s opinion is inconsistent with and not supported by the
record as a whole. 20 C.F.R. § 404.1527(c)(4) (ALJ must consider whether an opinion is
consistent with the record as a whole); see also Batson v. Comm’r of Soc. Sec. Admin.,
359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th
Cir.2002); Tommasetti, 533 F.3d at 1041 (finding it not improper for an ALJ to reject a
treating physician’s opinion that is inconsistent with the record).
Despite Plaintiff’s contention (Doc. 20 at 6), the opinions of Drs. Kwiatkowski
and Olubi with respect to Plaintiff’s vertigo, dizziness, and fatigue are contradicted by the
opinions of other doctors. For example, Dr. Glenn Kunsman diagnosed Plaintiff with
vertigo, but opined that Plaintiff’s condition would not impose any limitations for 12
continuous months. (A.R. 276). Consultative examiner Dr. Sarah Shepherd opined that
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despite Plaintiff’s diagnosis of Meniere’s disease, Plaintiff is not precluded from work.
(A.R. 254-58). Since the opinions of Drs. Kwiatkowski and Olubi are contradicted, the
ALJ must provide specific and legitimate reasons for rejecting the opinions of the treating
doctors.
1. Dr. Terrance Kwiatkowski
The ALJ discussed Dr. Kwiatkowski’s February 21, 2011 letter, which states that
Plaintiff “would have a significant amount of difficulty holding down a solid job” due to
Plaintiff’s vertigo. The ALJ gave little weight to Dr. Kwiatkowski’s opinion. Plaintiff
argues that the ALJ improperly rejected Dr. Kwiatkowski’s opinion. (Doc. 20 at 5).
In explaining why Dr. Kwiatkowski’s opinion was given little weight, the ALJ
stated that the opinion is not supported by the medical records. This is a specific and
legitimate reason for giving the opinion little weight. See Thomas v. Barnhart, 278 F.3d
947, 957 (9th Cir. 2002) (“The ALJ need not accept the opinion of any physician,
including a treating physician, if that opinion is brief, conclusory, and inadequately
supported by clinical findings.”).
The ALJ also found that Dr. Kwiatkowski’s opinion is inconsistent with other
substantial evidence in the record. The ALJ noted that Dr. Kwiatkowski’s opinion is
inconsistent with Plaintiff’s activities of daily living, such as caring for his children,
driving a car, and grocery shopping.
discounting a physician’s opinion.

This is a specific and legitimate reason for

20 C.F.R. § 404.1527(c)(4) (ALJ must consider

whether an opinion is consistent with the record as a whole); see also Batson, 359 F.3d at
1195 (9th Cir.2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002); Tommasetti,
533 F.3d at 1041 (finding it not improper for an ALJ to reject a treating physician’s
opinion that is inconsistent with the record).
The reasons for rejecting Dr. Kwiatkowski’s opinion are supported by substantial
evidence. For instance, in May 4, 2009, Dr. Kanokrat Suksompoth opined that Plaintiff
was “getting better” with medication and is helping his wife do business at home as
Plaintiff was now unemployed. (A.R. 243). An October 19, 2010 medical record reflects
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that Plaintiff stated his dizziness is better controlled with current medication, and Plaintiff
denied having fatigue and vertigo. (A.R. 249-50). On May 7, 2012, Dr. Richard Alfafara
reported that Plaintiff was doing well and has rare episodes of dizziness from Meniere’s
disease. (A.R. 323). This medical record also reflects that Plaintiff did not report fatigue,
weakness, or tinnitus. (A.R. 324).

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Moreover, Dr. Kunsman’s April 16, 2011 report, which is dated approximately
two months after Dr. Kwiatkowski’s letter, indicates that Plaintiff is able to drive and
“appears to have no difficulty with vertigo while driving.” (A.R. 276). This supports the
ALJ’s finding that Dr. Kwiatkowski’s opinion is inconsistent with Plaintiff’s activities of
daily living. As the ALJ’s reasons for discounting Dr. Kwiatkowski’s are specific,
legitimate, and are supported by substantial evidence, the Court finds that the ALJ
properly weighed Dr. Kwiatkowski’s opinion.

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2. Dr. Oluyemisi Olubi

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Plaintiff’s treating physician, Dr. Olubi, completed a Fatigue Questionnaire dated
May 14, 2012. (A.R. 331-33). Dr. Olubi indicated that Plaintiff had a level of fatigue
that impaired Plaintiff’s abilities in a number of areas. The ALJ gave the findings
reduced weight, explaining that the findings are contained in a form consisting of
checked boxes without further explanation. (A.R. 17). This is a proper reason for giving
the opinion reduced weight.

See Thomas, 278 F.3d at 957. The ALJ also found Dr.

Olubi’s assessment less persuasive as it is inconsistent with Plaintiff’s ability to wash
dishes, help with laundry, drive a car, ride a stationary bike, lift weights, and take out the
trash.
Plaintiff challenges the ALJ’s reasons for giving Dr. Olubi’s opinion less weight.
Yet Plaintiff does not explain why he believes the ALJ improperly discounted Dr. Olubi’s
opinion due to it being contained in a “check box” form.

See Carmickle v.

Commissioner, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (declining to address one of the
ALJ’s findings as the claimant’s briefing failed to argue the issue with specificity) (citing
Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir.2003) (noting
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that we “ordinarily will not consider matters on appeal that are not specifically and
distinctly argued in an appellant's opening brief”)).

Instead, Plaintiff states

“Interestingly, the capacities set forth by the state agency physicians, whose opinions are
given moderate weight are also offered in the form of a check box.” This assertion is
incorrect. For example, the ALJ gave moderate weight to Dr. Kunsman’s opinion, which
was written in a narrative format. The ALJ also gave moderate weight to Dr. Shepherd’s
opinion. While some of Dr. Shepherd’s finding are contained in a “check box” format,
Dr. Shepherd’s opinion also includes narrative discussion unlike Dr. Olubi’s opinion.
Regarding the ALJ’s statement that Dr. Olubi’s assessment is inconsistent with
Plaintiff’s activities of daily living, Plaintiff states that Plaintiff’s “condition has
worsened more recently and has not even been driving in the last several months. Dr.
Olubi’s opinion was offered during this worsening of condition.” (Doc. 20 at 6). Yet on
May 7, 2012, just one week prior to Dr. Olubi’s assessment, Dr. Alfafara reported that
Plaintiff was doing well and did not have fatigue symptoms. (A.R. 323-34). Dr. Alfafara
also reported that Plaintiff was alert and well-oriented. (A.R. 324).
It is well-settled that an ALJ, not the Court, is responsible for resolving
evidentiary conflicts, ambiguities, and determining credibility. Magallanes, 881 F.2d at
750; see also Andrews, 53 F.3d at 1039. If the evidence can rationally be interpreted in
more than one way, the Court must uphold the ALJ’s interpretation. Mayes v. Massanari,
276 F.3d 453, 459 (9th Cir. 2001). The Court does not find that the ALJ committed
harmful error in giving Dr. Olubi’s assessment less weight.
3. State Agency Physicians
Plaintiff challenges the ALJ’s reliance on the State agency physicians’ opinions by
arguing that the State agency physicians “are not specialists in vertigo and, on a one-time
basis, cannot judge the claimant’s capacities with regard to that ongoing vertigo.” (Doc.
20 at 4). The State agency physicians in this case are licensed physicians. Under Social
Security’s regulations, licensed physicians are acceptable medical sources who may offer
opinions regarding a claimant’s impairments and limitations. 20 C.F.R. §§
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404.1513(a)(1),(c). Plaintiff does not cite any authority and there is no evidence in the
record to support Plaintiff’s contention that the State agency physicians were not
qualified to evaluate an individual suffering from vertigo. The Court thus finds that
Plaintiff’s argument lacks merit.
4. Full and Fair Development of the Record
While an ALJ has a duty to fully and fairly develop the record and to assure that a
claimant’s interests are considered, that duty is triggered only when there is ambiguous
evidence or when the record is inadequate to allow for proper evaluation of the evidence.
Mayes, 76 F.3d at 459-60 (the ALJ’s duty to develop the record does not allow a claimant
to shift the claimant’s own burden of proving disability to the ALJ).

Plaintiff is

ultimately responsible for providing the evidence to be used in making the RFC finding.
Andrews v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995) (a claimant bears the burden of
proving entitlement to disability benefits).
Dr. Kwiatkowski allegedly specializes in Meniere’s disease and vertigo. Plaintiff
argues that the ALJ should have sought the opinion of a physician who specializes in the
area of Meniere’s disease and vertigo before rejecting Dr. Kwiatkowski’s opinion in
favor of the opinions of the State agency physicians who do not specialize in the area.
Plaintiff failed to raise this issue in his administrative proceedings. Accordingly, the
issue has been waived. Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (holding
that “at least when claimants are represented by counsel, they must raise all issues and
evidence at their administrative hearings in order to preserve them on appeal”); Phillips v.
Colvin, 593 Fed.Appx. 683 (9th Cir. 2015) (affirming district court’s ruling that an issue
was waived where claimant failed to raise it at the administrative level). As the Court
does not find that a manifest injustice will occur, Plaintiff’s failure to preserve the issue
on appeal will not be excused. See Meanel, 172 at 1115.
Moreover, even if Plaintiff did preserve the issue on appeal, the Court does not
find that the record is ambiguous or inadequate to allow for proper evaluation of the

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evidence. The ALJ’s duty to fully and fairly develop the record and to assure Plaintiff’s
interests are considered was therefore not triggered.

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D. Plaintiff’s Challenge at Step Five: Plaintiff’s Ability to Perform Other
Work in the National Economy Existing in Significant Numbers

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At the fifth step of the disability analysis, the burden rests on the Commissioner to

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show that the claimant can engage in work that exists in significant numbers in the

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national economy. 20 C.F.R. § 404.1520(a)(4)(v); Lockwood v. Comm’r of Soc. Sec.

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Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). An ALJ’s decision must be upheld if

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significant jobs exist either regionally or nationally. Beltran v. Astrue, 700 F.3d 386, 390

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(9th Cir. 2012) (“If we find either of the two numbers ‘significant,’ then we must uphold

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the ALJ's decision.”); 42 U.S.C. § 423(d)(2)(A).

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The ALJ found that Plaintiff could not perform his past relevant work. But the

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ALJ adopted the VE’s testimony that Plaintiff could perform three jobs: (i) document

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preparer; (ii) surveillance monitor; and (iii) telephone operator. The ALJ also adopted

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the VE’s testimony that the job of document preparer has 268 positions in Arizona and

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15,000 positions in the national economy; the job of surveillance system monitor has 70

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positions in Arizona and 3,500 positions nationwide; and the job of telephone operator

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has 62 positions in Arizona and 3,500 nationwide positions. (A.R. 66-67). Combined,

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there are 400 jobs in Arizona and 22,000 jobs nationally that Plaintiff could perform.

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Plaintiff argues that the Commissioner did not meet the burden of establishing that

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the jobs the VE identified that Plaintiff could perform exist in significant numbers in the

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economy. To support his argument, Plaintiff argues that 400 jobs in the State of Arizona

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is an insignificant number. Plaintiff, however, does not assert that 22,000 jobs nationally

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is an insignificant number. Based on Ninth Circuit case law, the Court finds that 22,000

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jobs is a significant number of national jobs. See Gutierrez v. Comm’r of Soc. Sec.

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Admin., 740 F.3d 519, 528-29 (9th Cir. 2014) (holding that 25,000 is a significant number

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of national jobs and referencing Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997),

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which held that 200 jobs in Iowa is a significant number). Therefore, under Beltran,

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Plaintiff has failed to show that the Commissioner did not meet the burden at step five in
establishing that Plaintiff can perform other work in the national economy that exists in
significant numbers.

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III. CONCLUSION

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Based on the foregoing, the Court concludes that the ALJ’s decision is supported

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by substantial evidence and free from reversible error. Accordingly, the decision of the

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Commissioner of Social Security is affirmed.

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IT IS THEREFORE ORDERED affirming the decision of the Commissioner of
Social Security. The Clerk of Court shall enter judgment accordingly.

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Dated this 22nd day of May, 2015.

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