Kenney v. Colvin

Filing 20

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 5/11/17. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joyce Darlene Kenney,
Plaintiff,

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No. CV-16-8116-PCT-ESW
ORDER

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v.

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Acting Commissioner of the Social Security
Administration,

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Defendant.

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Pending before the Court is Joyce Darlene Kenney’s (“Plaintiff”) appeal of the
Social Security Administration’s (“Social Security”) denial of her application for
disability insurance benefits. The 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. (Doc. 14).
After reviewing the Administrative Record (“A.R.”) and the parties’ briefing
(Docs. 15, 19), the Court finds that the Administrative Law Judge’s (“ALJ”) decision is

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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 (the “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).

on an alleged disability, 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. 42 U.S.C. § 423(d)(1)(A). The claimant must also show
that the impairment is expected to cause death or last for a continuous period of at least
12 months. Id.
To decide if a claimant is entitled to Social Security 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: 1
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.
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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To be eligible for benefits based

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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(f). 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: 2

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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(g). 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). “Substantial evidence” is
less than a preponderance, but 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 is relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Id.

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Parra, 481 F.3d at 746.
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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
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). The ALJ, not the Court, is responsible for resolving conflicts and
ambiguities in the evidence and determining credibility. Magallanes, 881 F.2d at 750;
see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Finally, the Court considers the harmless error doctrine when reviewing an ALJ’s
decision. 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).

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II. PLAINTIFF’S APPEAL
A. Procedural Background
Plaintiff, who was born in 1951, has a long employment history that includes
working at Wells Fargo and American Express. (A.R. 39-40, 53, 180-81). In January
2013, Plaintiff filed an application for disability insurance benefits.

(A.R. 135-38).

Plaintiff’s application alleged that on July 9, 2012, Plaintiff became unable to work due
to a number of impairments, including asthma, chronic obstructive pulmonary disease
(“COPD”), emphysema, “[b]reathing problems caused by stress,” anxiety, depression,
post-traumatic stress disorder, right toe surgery, hypoglycemia, back pain, and whiplash.
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(A.R. 53-54). Social Security denied the application on June 21, 2013. (A.R. 83-86). In
October 2013, upon Plaintiff’s request for reconsideration, Social Security affirmed the
denial of benefits.

(A.R. 90-92).

Plaintiff sought further review by an ALJ, who

conducted a hearing in October 2014. (A.R. 35-51, 93-94).
In his December 2014 decision, the ALJ found that Plaintiff is not disabled within
the meaning of the Social Security Act. (A.R. 20-29). 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, 14-16). On June 2, 2016, 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
1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Plaintiff has not engaged in substantial gainful activity
since July 9, 2012, the alleged disability onset date. (A.R. 22). Neither party disputes
this determination.

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2. Step Two: Presence of Medically Severe Impairment/Combination
of Impairments

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The ALJ found that Plaintiff has the following severe impairments: (i) asthma; (ii)

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allergies; (iii) COPD; (iv) headaches; (v) heel spur; and (vi) obesity. (A.R. 22). This

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determination is undisputed.

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3. Step Three: Presence of Listed Impairment(s)

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The ALJ determined that Plaintiff does not have an impairment or combination of

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impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404,

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Subpart P, Appendix 1 of the Social Security regulations. (A.R. 23-24). Neither party

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challenges the ALJ’s determination at this step.

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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), except that

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[Plaintiff] can occasionally lift and carry twenty pounds,
frequently lift and carry ten pounds, stand and walk for two
hours, and sit for six hours. She can frequently balance and
occasionally stoop, kneel, crouch, crawl, and climb ramps and
stairs. However, she cannot climb ladders, ropes, or
scaffolds. Additionally, she should avoid humidity, extreme
heat and cold, and even moderate exposure to fumes, odors,
dusts, gases, and poor ventilation.

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(A.R. 24). Based on Plaintiff’s RFC, the ALJ determined at Step Four that Plaintiff is
able to perform her past relevant work as a “credit card control clerk.” (A.R. 29).
Plaintiff disputes this determination.
5. Step Five: Capacity to Perform Other Work

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As the ALJ found at Step Four that Plaintiff is not disabled, the ALJ did not reach
Step Five of the disability analysis.
C. Plaintiff’s Challenge to the ALJ’s Step Four Determination

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1. Plaintiff’s Argument that the ALJ Erroneously Identified “Credit
Card Control Clerk” as Past Relevant Work

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An ALJ may find at Step Four that a claimant is not disabled if the ALJ

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determines that the claimant can perform his or her past relevant work 3 as it (i) was

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actually performed or (ii) is generally performed in the national economy.

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Security Ruling (“SSR”) 82–61, 1982 WL 31387, at *1-2 (1982). The law does not

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require an ALJ to make “explicit findings at step four regarding a claimant’s past relevant

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work both as generally performed and as actually performed.” Pinto v. Massanari, 249

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F.3d 840, 845 (9th Cir. 2001) (emphasis in original). An ALJ, however, must make

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specific findings as to (i) the claimant’s RFC; (ii) the physical and mental demands of the

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past relevant work; and (iii) the relation of the RFC to the past work. Id. at 845 (citing

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SSR 82-62). A claimant has the burden of establishing that he or she is incapable of

Social

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“Past relevant work” is work (i) performed within the past fifteen years, (ii)
constituting substantial gainful activity, and (iii) lasting long enough for the individual to
have learned how to perform the work. 20 C.F.R. §§ 404.1560(b)(1), 404.1565(a).
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performing his or her past relevant work.

20 C.F.R. § 404.1512; Barnhart v.

Thomas, 540 U.S. 20, 25 (2003).
Plaintiff’s Work History Report reflects that she worked in “Credit Review
Operations” at American Express from 2003 to 2007. (A.R. 180). The ALJ stated that
Plaintiff performed the job of “credit card control clerk,” classified in the Dictionary of
Occupational Titles (“DOT”) under job title number 249.367-026. (A.R. 29). After
comparing Plaintiff’s RFC with the physical and mental demands of this position, the
ALJ found that Plaintiff is able to work in the position as it is generally performed. (Id.).
Plaintiff argues that the ALJ’s Step Four determination is erroneous, asserting that
Plaintiff’s past relevant work as “Credit Review Operations” is not equivalent to the
“credit card control clerk position” identified by the ALJ. (Doc. 15 at 4-5).
In defining a claimant’s past relevant work, an ALJ may rely on the claimant’s
properly completed vocational report and the claimant’s own testimony. Pinto, 249 F.3d
at 845 (citing SSR 82-61, SSR 82-41). Plaintiff reported in her Work History Report that
while holding the “Credit Review Operations” position, she “sat in front of computer,
reviewing Credit Card Accts.” (A.R. 183). Plaintiff also indicated that she made phone
calls to customers, filled out forms, and typed on the computer.

(Id.).

The DOT

describes the “credit card control clerk” position as including duties such as verifying the
renewal of credit cards, initiating correction forms, and verifying customers’ account
balances to expedite issuance or renewal of cards. DOT 249.367-026, 1991 WL 672328.
Substantial evidence supports the ALJ’s finding that Plaintiff’s past relevant work
includes the “credit card control clerk” position. The Court finds that the ALJ did not
erroneously identify “credit card control clerk” as Plaintiff’s past relevant work.
2. Plaintiff’s Challenge to the ALJ’s RFC Assessment
Plaintiff argues that the ALJ’s RFC assessment is erroneous because “Plaintiff
identified very specific limitations which are simply not accounted for in the ALJ’s RFC
finding that Plaintiff can tolerate ‘moderate’ levels of inimical environmental stresses.”
(Doc. 15 at 6). Plaintiff’s argument mischaracterizes the ALJ’s RFC assessment. The
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RFC assessment does not state that Plaintiff can tolerate “moderate” levels of inimical
environmental stresses. The RFC assessment states that Plaintiff “should avoid . . . even
moderate exposure to fumes, odors, dusts, gases, and poor ventilation.” (A.R. 24)
(emphasis added). Plaintiff has failed to show that the RFC assessment does not account
for her limitations related to her asthma and COPD. See McLeod v. Astrue, 640 F.3d 881,
887 (9th Cir. 2011) (as amended) (“Where harmfulness of the error is not apparent from
the circumstances, the party seeking reversal must explain how the error caused
harm.”); Independent

Towers

of

Wash.

v.

Wash., 350

F.3d

925,

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(9th

Cir.2003) (noting that a court “cannot manufacture arguments for an appellant” and thus
“will not consider any claims that were not actually argued in [the] opening brief”).
Plaintiff also argues that the ALJ’s RFC assessment is defective because the ALJ
failed to consider Plaintiff’s excellent work history. (Doc. 15 at 11-12). Yet the ALJ’s
decision indicates that the ALJ has reviewed Plaintiff’s earning record. (A.R. 20) (“The
claimant’s earnings record shows that the claimant has acquired sufficient quarters of
coverage to remain insured through September 30, 2017.”). Further, an ALJ is not
required to discuss every piece of evidence in the record. Howard v. Barnhart, 341 F.3d
1006, 1012 (9th Cir. 2003). While a claimant’s work history may be deemed probative of
credibility, a strong work history does not require an ALJ to credit a plaintiff’s symptom
testimony. 4 Plaintiff has failed to show that the ALJ’s failure to engage in a more
elaborate discussion of Plaintiff’s work history is error, let alone harmful error. See
Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (“The burden is on the party
claiming error to demonstrate not only the error, but also that it affected his ‘substantial
rights,’ which is to say, not merely his procedural rights.”).

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Plaintiff concedes that a strong work history does not entitle a claimant to
enhanced credibility. (Doc. 15 at 12).
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3. Plaintiff’s Argument that the ALJ Committed Error by Failing to
Obtain the Testimony of a Vocational Expert

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Although Plaintiff concedes that an ALJ is not necessarily required to obtain the
testimony of a Vocational Expert (“VE”) at Step Four, Plaintiff argues that the ALJ erred
by “fail[ing] to obtain [VE] testimony to support his step 4 finding that Plaintiff can
perform her past relevant work in light of her non-exertional limitations.” (Doc. 15 at 3,
7). Plaintiff appears to assert that VE testimony is necessary to determine whether
Plaintiff’s restrictions regarding inimical environmental stressors erode the occupational
base. (Id. at 6-7).
An ALJ may rely upon the DOT as the rebuttable presumptive authority regarding
job classifications. See Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (“The
regulations, themselves, provide that the DOT classifications are rebuttable.”); Villa v.
Heckler, 797 F.2d 794, 798 (9th Cir. 1986) (“[A] claimant is not foreclosed from
undertaking

the

burdensome

task

of

demonstrating

that

the Selected

Characteristics inaccurately evaluates the exertional demands of a job title that does
apply.”). The DOT explains that the “credit card control clerk” position does not involve
exposure

to

conditions

that

affect

the

respiratory

system,

such

as fumes,

noxious odors, dusts, mists, gases, and poor ventilation. DOT 249.367-026, 1991 WL
672328 (stating “Atmospheric Cond.: Not present- Activity or condition does not exist”);
Selected Characteristics of Occupations, Appx. D., SCODICOT Appendix D (1993
ed.) (defining “Atmospheric Conditions” as “Exposure to such conditions as fumes,
noxious odors, dusts, mists, gases, and poor ventilation, that affect the respiratory system,
eyes, or the skin.”). Plaintiff has failed to show that the DOT inaccurately states that the
“credit card control clerk” position does not involve exposure to conditions that affect the
respiratory system. The Court does not find that the ALJ erred by not obtaining the
testimony of a VE.

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III. CONCLUSION
Based on the foregoing, the Court finds that the ALJ’s decision is supported by
substantial evidence and is free from reversible error. 5 Accordingly, the decision of the
Commissioner of Social Security is affirmed.
IT IS THEREFORE ORDERED affirming the decision of the Commissioner of
Social Security. The Clerk of Court shall enter judgment accordingly.
Dated this 11th day of May, 2017.

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To the extent that Plaintiff may challenge the ALJ’s decision on other grounds
not discussed in this Order, the challenge has been waived by failing to raise the grounds
in Plaintiff’s Opening Brief. See Bray v. Commissioner of Social Security Admin. 554
F.3d 1219, 1226 n. 7 (9th Cir. 2009) (deeming argument not made in disability claimant's
Opening Brief waived).
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