The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER
Currently pending before the Court is Lisa L. Markoe's Petition for Review (Docket No. 1) seeking judicial review of the final decision of Respondent denying her claim for disability and disability insurance benefits. This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully reviewed the record, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
Lisa L. Markoe ("Petitioner" or "Claimant") applied for Social Security Disability and Social Security Income benefits on May 24, 2006 alleging disability beginning May 15, 2005. (AR 99-104). Petitioner's applications were denied initially (AR 73) and again after reconsideration (AR 80-83). Petitioner filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). (AR 86). The ALJ held a video hearing on February 26, 2008 from Billings, Montana, and Petitioner appeared in Boise, Idaho. (AR 18, 20, 90).
At the hearing, the Petitioner testified, along with mental health expert, Michael Dennis, Ph.D.; and vocational expert, Beth Cunningham. (AR 18). Petitioner was represented by counsel at the hearing. Id.
At the time of the hearing, Petitioner was 38 years old. (AR 39). She has a high school education and past work experience as a mortgage loan officer, sales representative, and mail clerk. (AR 39, 59-60, ). In general, Petitioner testified that she is unable to work due to severe bipolar disorder with symptoms of racing thoughts, stress, anxiety, and anger control. (AR 42-46). Petitioner also testified that her medications do not control her symptoms. (AR 43).
On April 8, 2008, the ALJ issued a decision denying Petitioner's claim. (AR 6-17). Petitioner appealed the ALJ's decision to the Appeals Council (AR 4) and, after the appeal was denied (AR 1-3), filed a timely Petition for Review in the United States District Court for the District of Idaho.
To be upheld, the Commissioner's decision must be supported by substantial evidence and be based on proper legal standards. 42 U.S.C. § 405(g) (2005); Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). Findings of the ALJ as to any fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g); Vidal v. Harris, 637 F.2d 710, 712 (9th Cir. 1981). Substantial evidence is defined as such relevant evidence as 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).
With respect to questions of fact, this Court's task is to review the entire record 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. The ALJ is responsible for determining credibility and 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). Where the evidence is susceptible to more than one rational interpretation, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. Flatten, 44 F.3d at 1457.
With respect to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ's construction of the Social Security Act ("Act") is entitled to deference if it has a reasonable basis in law. See id. However, reviewing federal 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).
In evaluating the 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 (1997). The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(I). If the answer is in the affirmative, disability benefits are denied. 20 C.F.R. § 404.1520(b).
In the instant action, the ALJ concluded that Petitioner has engaged in substantial gainful activity since her alleged onset date. (AR 11). The ALJ found, based on Petitioner's testimony, that Petitioner worked as a mail opener for the Department of Health and Welfare between May 2007 and February 1, 2008 and earned approximately $400.00 per week for such services. Id. The ALJ further found that $400.00 per week is above the regulatory level necessary to establish "substantial gainful activity" pursuant to 20 CFR § 404.1574. Id.
The second step requires the ALJ to determine whether the claimant has a medically-severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). Here, the ALJ found that Petitioner is severely impaired by bipolar disorder. (AR 11).
The third step in the evaluation process requires the ALJ to determine whether the claimant's impairments meet or equal the requirements for a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). If the answer is in the affirmative, the claimant is disabled and benefits are awarded. 20 C.F.R. § 404.1520(d). In this respect, the ALJ reviewed the listing requirements under 12.04 for affective disorders and determined that Petitioner's impairment does not meet or medically equal a listed impairment in Appendix 1, Subpart P, Regulation No. 4. (AR 11).
The fourth step requires the ALJ to determine whether the claimant's residual functional capacity is sufficient to perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). Here, the ALJ found that Petitioner has the residual functional capacity to perform work at all exertional levels, provided that the work does not involve more than minimal contact with the general public or high levels of concentration on more than an occasional basis. (AR 13). Accordingly, the ALJ concluded that Petitioner is capable of performing her past relevant work. (AR 16).
In the fifth and final step of analysis, if it has been established that a claimant can no longer perform past relevant work, the burden shifts to the Commissioner to show that the claimant retains the ability to do alternate work and to demonstrate that such alternate work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(f); Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). In the instant case, the ALJ did not go through the fifth step, because he found that Petitioner is capable of performing her past relevant work as a mail clerk.
B. Petitioner's Issues with the ALJ's Decision
Petitioner raises five issues with the ALJ's decision and contends: (1) the record supports a finding that Petitioner meets the listing criteria for bipolar disorder; (2) the ALJ improperly rejected the opinion of Petitioner's treating psychiatrist; (3) the residual functional capacity finding is not supported by substantial evidence in the record; (4) the ALJ improperly concluded that Petitioner's can perform her past relevant work as a mail clerk; and (5) the ALJ improperly rejected Petitioner's testimony. Petitioner's Brief in Support of Petition for Review, p. 7 (Docket No. 13). These arguments are interrelated; however, each issue is addressed in the following analysis.
1. The ALJ's Decision to Reject the Opinion of Petitioner's Treating Physician and Find Petitioner Does Not Meet a Listing Are Supported by Substantial Evidence in the Record
Petitioner raises two related issues with regard to the ALJ's analysis at step three of the five-step process. Petitioner argues that the ALJ erred in rejecting the opinion of Petitioner's treating psychiatrist, Michele Boyer, MD, and the ALJ erred in finding that Petitioner meets the requirements for Listing 12.04. As explained more fully below, the Court finds that there is conflicting evidence in the record concerning the severity of Petitioner's mental disorder. Nevertheless, the ALJ's decision to reject Dr. Boyer's opinion is without error, in that his finding that Petitioner does not meet a listing is supported by substantial evidence in the record. Therefore, the ALJ's decision must stand.
a. The ALJ's Decision to Reject the Treating Physician's Opinion
Generally, the opinion of a treating physician*fn1 is entitled to considerable weight. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). However, a treating physician's opinion is not conclusive either as to the petitioner's condition or the ultimate issue of disability. See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989). A treating physician's opinion may be rejected if contradicted by another doctor's opinion provided that the ALJ gives "specific and legitimate reasons" for doing so that "are supported by substantial evidence" in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005). If not contradicted by another physician's opinion, the treating physician's opinion may be rejected only for clear and convincing reasons. Lester, 81 F.3d at 830.
Where, as here, the ALJ rejects the opinion of a treating physician, at least in part, based on the opinion of a consulting physician, there must be additional evidence in the record to support the decision. "The opinion of a nonexamining physician alone cannot by itself constitute substantial evidence that justifies the rejection of either an examining physician or a treating physician." Id. at 831. However, a nonexamining physician's opinion, when supported by additional evidence in the record, may provide a sufficient a sufficient basis for rejecting a treating physician's opinion. Maggalanes, 881 F.2d at 752; Saelee v. Chater, 94 F.3d 520, 522 (9th Cir.1996)("the findings of a nontreating, nonexamining physician can amount to substantial evidence, so long as other evidence in the record supports those findings.")
In the instant case, the ALJ rejected Dr. Boyer's opinion and relied, instead, on the conflicting testimony from a nonexamining expert, which the ALJ found more consistent with the record as a whole. (AR 13). While the outcome may have been different if the Court were the fact finder, the ALJ did not err in rejecting the treating physician's opinion. As explained more fully below, the ALJ's decision is based on specific and legitimate reasons supported by substantial evidence in the record.
Petitioner's treating physician, Dr. Boyer, submitted a Psychological Review Technique form indicating that Petitioner met all of the criteria for listing under 12.04 for affective disorders. (AR 221-35). The ALJ gave Dr. Boyer's ultimate opinion "very little weight," because of "the conclusory nature of her opinions and the inconsistencies between her opinions and the ...