The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Currently pending before the Court is Rhonda Ask's Petition for Review (Docket No. 1). She seeks judicial review to set aside the final decision of the Commissioner's denial of her claim for Disability Insurance Benefits under Title XVI of the Social Security Act. Ask brings this action pursuant to 42 U.S.C. §§ 405(g), 1383(c).
Having carefully reviewed the record, and being otherwise fully advised, the Court enters the following Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
On November 24, 2003, Rhonda Ask (hereinafter, "Petitioner" or "Claimant") protectively filed a claim for supplemental social security income benefits under Title XVI of the Social Security Act (the "Act"). (AR 35). This is Petitioner's third application for such benefits. (AR 66, 103). In this application, Petitioner alleges a combination of impairments that began on Janurary 1, 1999. Petitioner presents a history of pelvic fracture, ataxia of the lower extremities, probable osmotic pontine myelolysis, hearing impairment, degenerative disc disease, borderline intellectual functioning, depressive disorder, post-traumatic stress disorder, personality disorder and a history of alcohol abuse. (AR 20). The Commissioner denied Petitioner's initial application, and then again after reconsideration. Thereafter, Petitioner filed a timely request for a hearing before an Administrative Law Judge. (AR 17--18). ALJ John C. Arkoosh held a hearing on May 2, 2005, in Boise, ID. Petitioner appeared personally, and was represented by attorney Larry Weeks at that hearing. (AR 17). Dr. Bill Arnold, medical expert, and Polly Peterson, vocational expert, were also present and testified at that hearing. (AR 411).
As of September 12, 2005, Petitioner's application was denied through the ALJ level. However, her application was remanded for further proceedings by the Appeals Counsel by an order dated March 8, 2006. (AR 440). On February 26, 2007, a second hearing took place in front of ALJ Arkoosh. (AR 439). At this hearing, Petitioner was again represented by her attorney, Larry Weeks. Vocational expert Beth Cunningham and medical expert Dr. James Bruce also appeared and testified at the hearing.
On October 23, 2007, the ALJ denied Petitioner's claim based on a finding that during the period of the claimed disability, Petitioner "[did] not have an impairment of combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1." (AR 23).
Petitioner requested the Appeals Council review the ALJ's decision. The Appeals Council denied review on March 25, 2008, making the AJL's decision the final decision of the Commissioner of Social Security. (AR 9--12).
Having exhausted her administrative remedies, Petitioner timely filed the instant action. Petition for Review (Docket No. 1). Now represented by attorney Andrea Cardon Magee, Petitioner requests that the ALJ's decision be reversed or, in the alternative, that this matter be remanded for an ALJ hearing de novo. Id. at p. 20.
At the time of the second hearing before the ALJ, Petitioner was forty-seven years old. (AR 26). Petitioner attended school through the middle of the eleventh grade, communicates, fluently, in English and can read and write on a basic level. (AR 447--50). Petitioner has past relevant work experience as a waitress, bartender and as a janitor. (AR 358--59). Petitioner has stated that due to her disability, she has been unable to perform any of those past jobs functions. (AR 452).
In his October 27, 2007, decision, the ALJ determined that Petitioner has the following combination of severe impairments: "history of pelvic fracture, ataxia of the lower extremities, probable osmotic tontine myelolysis, hearing impairment, degenerative disc disease, borderline intellectual functioning, depressive disorder, post traumatic stress disorder, personality disorder and a history of alcohol abuse . . . ." (AR 20). However, the ALJ concluded that, in denying her application, Petitioner had not met her burden of proving that she has been under a disability as defined by the Social Security Act during the period under consideration. (AR 23).
It is undisputed that the burden of proof rests upon the Petitioner to establish entitlement to disability benefits. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). In evaluating the evidence at an administrative hearing, the ALJ must follow a five-part sequential process. 20 C.F.R. §§ 404.1520, 416.920 (2005).
If the Commissioner's decision is supported by substantial evidence and based upon proper legal standards, then it will be upheld. 42 U.S.C. § 405(g) (2000); Matney ex rel. Matney v. Sullivan, 921 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). Findings of fact by the ALJ are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Vidal v. Harris, 637 F.2d 710, 712 (9th Cir. 1981). In other words, if there is substantial evidence to support the ALJ's factual determinations, they must be upheld, even in the face of conflicting evidence. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flatten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). This standard requires "more than a scintilla," but "less than a preponderance," Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990), and "does not mean a large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; Matney, 981 F.2d at 1019. The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984), resolving ambiguities, see Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394--95 (9th Cir. 1984), and drawing inferences logically flowing from the evidence, Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). When the evidence is susceptible to more than one rational interpretation in a disability proceeding, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. Flatten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
With respect to questions of law, the ALJ's decision must be based on proper legal standards and will only be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ's construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See id. However, reviewing courts "will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute." Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987). Reviewing courts must bear in mind that the Social Security Act is remedial and should be construed liberally and "not so as to withhold benefits in marginal cases." Id. at 1095 (citations omitted).
The issue presented in the instant appeal is whether the Appeals Council's finding that Petitioner was not disabled is supported by substantial evidence and whether the finding is based on an application of proper legal standards.
When evaluating evidence presented at an administrative hearing, the ALJ must follow a five-step sequential process in determining whether a person is disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. "The burden of proof is on claimant as to steps one through four[, but] as to step five, the burden shifts to [the] Commissioner." Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999).
The first step of the sequential process requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, Petitioner is not disabled, and benefits are denied. 20 C.F.R. § 404.1520(b). In the instant action, the ALJ concluded that Petitioner has not performed substantial gainful activity since November 24, 2003, the protective filing date of Petitioner's application. (AR 19).
The second step requires the ALJ to determine whether the claimant's impairment or combination of impairments are severe. 20 C.F.R. § 404.1520(a)(4)(ii). If the answer is in the negative, disability benefits are denied. 20 C.F.R. § 404.1520(c). Here, the ALJ found that Petitioner has a severe combination of ten impairments: "history of pelvic fracture, ataxia of the lower extremities, probable osmotic pontine myelolysis, hearing impairment, degenerative disc disease, borderline intellectual functioning, depressive disorder, post-traumatic stress disorder, and a history of alcohol abuse in remission since May 2004." (AR 20).
At the third step, the ALJ must determine whether the claimant's impairments meet or equal a listed impairment under the 20 C.F.R. Pt. 404, Subpt. P, App. 1. If so, the claimant is disabled, and entitled to disability insurance benefits. 20 C.F.R. § 404.1520(d). "If the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant's case cannot be resolved at step three and the evaluation proceeds to step four." Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (citing 20 C.F.R. § 404.1520(d)). In the instant action, the ALJ concluded that Petitioner did not have an impairment or combination of impairments that meets or medically equals, one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (AR 23).
The fourth step of the evaluation process requires the ALJ to determine whether the claimant's residual functional capacity is sufficient for the claimant to perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is "not disabled" and thus not entitled to disability insurance benefits. See 20 C.F.R. § 404.1520(e). "If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at step four and the evaluation proceeds to the fifth and final step." Lounsburry, 468 F.3d at 1114. In this regard, the ALJ concluded that Petitioner retains "the residual functional capacity to perform less than a full range of light work activity [with several] limitations . . . ." (AR 24). The ALJ concluded, however, that Petitioner is unable to perform any past relevant work "because of the amount of standing involved." (AR 33). Accordingly, the claim could not be resolved at step four, and the ALJ's evaluation proceeded to the fifth and final step of the process. See 20 C.F.R. § 404.1520(e) (AR 20--27).
When the claim reaches step five, the ALJ considers if the claimant is able to do any other work. 20 C.F.R. § 404.1520(f)(1). On the fifth step, the burden shifts to the ALJ. Id. If the ALJ finds that claimant cannot work, then the claimant is "disabled" and entitled to disability insurance benefits. Id. If the ALJ determines that the claimant can work, the ALJ must then establish that there are a significant number of jobs in the national economy that claimant can do in his or her condition. Id. "If the Commissioner cannot meet this burden, then the claimant is "disabled" and therefore entitled to disability benefits." Lounsburry, 468 F.3d at 1114. The ALJ can meet this burden two ways. Id. First, the ALJ can solicit the testimony of a vocational expert; and second, the ALJ can reference the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. Id.
In the instant case, the ALJ, based on the testimony of a vocational expert, concluded that, "considering the claimant's age, education, work experience, and residual functional capacity, [claimant is] capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (AR 34). Specifically, the ALJ determined that Petitioner is "able to perform the requirements of representative occupations such as telemarketer . . ., call-out ...