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Zurrin v. Astrue


March 31, 2010


The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge


Now pending before the Court is Jean Zurrin's Petition for Review (Docket No. 1), seeking review of the Social Security Administration's final decision to deny her claim for Title II disability 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:


Petitioner applied for Social Security disability benefits on May 31, 2005; she was denied initially and, again, on reconsideration. See Pet.'s Brief, p. 2 (Docket No. 16). Petitioner made a timely request for a hearing before an Administrative Law Judge ("ALJ"). See id. On April 18, 2007, ALJ Steven B. Berlin held a hearing in Boise, Idaho, at which time, Petitioner, represented by attorney Andrea Cardon, appeared and testified. See id. A vocational expert, Anne F. Aastum, also appeared and testified during the same April 18, 2007 hearing.

On September 26, 2007, the ALJ issued a decision denying Petitioner's claims, finding that Petitioner was not disabled within the meaning of the Social Security Act. See id. Petitioner timely requested review from the Appeals Council on November 21, 2007. See id. On January 23, 2009, the Appeals Council denied Petitioner's request for review, making the ALJ's decision the final decision of the Commissioner of Social Security. See id.

Having exhausted her administrative remedies, Petitioner timely files the instant action, arguing that "[t]he final Agency decision is not supported by substantial competent evidence and/or contains legal error." See Pet. for Review, p. 1 (Docket No. 1). Specifically, Petitioner asserts that (1) the ALJ failed to properly support his rejection of Petitioner's allegations of disabling pain and other symptoms; and (2) the ALJ's residual functional capacity assessment failed to accurately describe Petitioner's limitations from June 25, 1999 to the present. See Pet.'s Brief, pp. 7-15 (Docket No. 16). Petitioner requests that the Court reverse the ALJ's decision and order the payment of benefits or, alternatively, remand the case for proper consideration of the evidence. See id. at p. 14; see also Pet. for Review, p. 2 (Docket No. 1).


To be upheld, the Commissioner's decision must be supported by substantial evidence and based on proper legal standards. 42 U.S.C. § 405(g); 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 as to any question of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ's factual decisions, they must be upheld, even when there is conflicting evidence. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).

"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). The standard requires more than a scintilla but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), 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; see also Matney, 981 F.2d at 1019. 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 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 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 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).


A. Sequential Processes

In evaluating the evidence presented at an administrative hearing, the ALJ must follow a sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§ 404.1520, 416.920) - or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) - within the meaning of the Social Security Act.

The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity ("SGA"). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). SGA is defined as work activity that is both substantial and gainful. "Substantial work activity" is work activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). "Gainful work activity" is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless of how severe his physical/mental impairments are and regardless of his age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that Petitioner worked briefly after her alleged disability onset date but, given the nominal amount of her earnings, concluded that it did not constitute substantial gainful activity. (AR 23).

Therefore, the ALJ determined that Petitioner did not engage in substantial gainful activity from June 27, 1999 - the alleged onset date. Id.*fn2

The second step requires the ALJ to determine whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is "severe" within the meaning of the Social Security Act if it significantly limits an individual's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of impairments is "not severe" when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work. 20 C.F.R. §§ 404.1521, 416.921. If the claimant does not have a severe medically determinable impairment or combination of impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner had the following severe impairments: (secondary to an industrial accident) status post complex pelvic fracture with iliosacral screw fixation, left metatarsal fracture, degloving wound of the right lower extremity, and closed head injury with loss of consciousness and post-traumatic amnesia; depression; and (secondary to her head injury) a cognitive disorder. (AR 23-24).

The third step requires the ALJ to determine the medical severity of any impairments; that is, whether the claimant's impairments meet or equal a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer is yes, the claimant is considered disabled under the Social Security Act and benefits are awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant's impairments neither meet nor equal one of the listed impairments, the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner's above-listed impairments, while severe, do not meet or medically equal, either singly or in combination, the criteria established for any of the qualifying impairments. (AR 24-25).

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), 416.920(a)(4)(iv). An individual's residual functional capacity is his ability to do physical and mental work activities on a sustained basis despite limitations from his impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual's past relevant work is work performed within the last 15 years or 15 years prior to the date that disability must be established; also, the work must have lasted long enough for the claimant to learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner has the residual functional capacity to perform light work with the following limitations: (1) lift/carry 20 pounds occasionally, 10 pounds frequently; (2) push/pull up to 25 pounds; (3) stand and/or walk for at least two hours in an eight-hour workday; (4) alternate sitting and standing at will; (5) no more than occasionally stoop, kneel, crawl, or squat; (6) cannot carry out detailed instructions on a sustained basis without infrequent errors; (7) cannot maintain attention and concentration for extended periods without infrequent distraction; and (8) needs a stable work environment with few changes in duties, personnel, supervision, hours, or physical environment. (AR 25-28). In doing so, however, the ALJ further found that Petitioner is incapable of returning to her past relevant work as a flagger and horticulture worker II. (AR 28).

In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of his/her impairments, 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), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do other work, he/she is not disabled; if the claimant is not able to do other work and meets the duration requirement, he/she is disabled. Here, even though the ALJ found that Petitioner was not able to perform past relevant work, the ALJ found that Petitioner maintained the ability to perform a number of light, unskilled occupations in the national economy, including assembly press operator, small products assembler, and plastic hospital products assembler. (AR 28-29).

B. Analysis

Petitioner challenges the ALJ's denial of disability benefits in two separate respects. First, Petitioner argues that the ALJ did not provide clear and convincing evidence for rejecting her own testimony. See Pet.'s Brief, pp. 7-13 (Docket No. 16). Second, Petitioner argues that the ALJ's residual functional capacity assessment failed to accurately incorporate Petitioner's alleged limitations over time. See id. at pp. 13-14.

1. Petitioner's Credibility

Petitioner takes issue with the ALJ's challenge to her credibility, stating in no uncertain terms that "[t]he ALJ failed to properly support his negative credibility finding." See id. at p. 7.

The ALJ is in the best position to make such credibility determinations and, for this reason, the ALJ's credibility determinations are entitled to great weight. See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990). In evaluating a claimant's credibility, the ALJ may consider a claimant's reputation, inconsistencies either in testimony or between testimony and conduct, daily activities, past work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the alleged symptoms. See Light v. Social Security Admin., 119 F.3d 789, 791 (9th Cir. 1997). In short, "[c]redibility decisions are the province of the ALJ." Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). At the same time, it should be noted that, to reject a claimant's testimony, the ALJ must make specific findings stating clear and convincing reasons for doing so. See Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001).

Petitioner states that "[t]he objective medical evidence clearly diagnoses medical conditions that are likely to cause pain." See Pet.'s Brief, p. 12 (Docket No. 16). The ALJ's decision, however, cannot be interpreted as disagreeing with such a notion; indeed, he found Petitioner to be suffering from several severe impairments that could reasonably be expected to produce the alleged symptoms. (AR 23-25). It is what the ALJ goes on to state, that Petitioner objects to, namely, that "Claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." (AR 26).

During the April 18, 2007 hearing, Petitioner testified to her counsel that, on an average day, she must lie down for six hours or more during the day, stating:

Q: Okay. On an average day, how much time do you think you spend in the reclining position or laying down, from 9:00 to 5:00?

A: More than I am up.

Q: Okay.

A: For a total day?

Q: From 9:00 to 5:00, during the day --

A: From 9:00 --

Q: -- day hours

A: I'd probably say about six hours a day I'm reclining. (AR 450-451). Petitioner later confirmed her alleged disabling pain and apparent need to lie down, when responding to the ALJ's related, follow up question:

Q: Okay. I didn't quite hear the answer, your attorney asked you on a bad day*fn3 how much time you spend reclining and I, I don't think I heard your answer.

A: Six hours, maybe more. It varies. (AR 452). Contrasted against other medical evidence in the record, the ALJ challenged Petitioner's credibility on the extent of her symptoms

For example, the ALJ considered Petitioner's daily activities in his credibility analysis. (AR 27) ("Moreover, the Claimant's activities are not consistent with a complete inability to sustain work."). If a claimant engages in numerous daily activities involving skills that could be transferred to the workplace, the ALJ may question that claimant's allegations. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); but see Hernandez-Devereaux v. Astrue, 614 F. Supp. 2d 1125, 1149 (D. Or. 2009) ("[I]t is equally true that '[t]he Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits and many home activities are not easily transferable to what may be the more grueling environment of the workplace....'" (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989))). With this in mind, the ALJ pointed out that, within her self-reported "Function Report - Adult" form and elsewhere in the record, Petitioner indicated that "[s]he does laundry, vacuums, shops, cleans, and cooks for her family..... In addition, she reads, crochets, does puzzles, plays computer games, and has participated in classes via the internet." (AR 27 (citing AR 85-93; 119-127; 407)).*fn4

However, it must also be stated that the record indicates that such tasks took a substantial amount of time and were not performed without pain. (AR 454-455). While one's ability to efficiently complete household chores may suggest a claimant is not as disabled as he or she claims, the Court is careful to recognize that mere attempts to complete such tasks are not equally indicative of an exaggerating claimant. Such may be the case here.

Additionally, it is undisputed that, following her accident, Petitioner "expressed a desire to return to work and has tried many times to find work" (AR 27 (citing AR 81-84; 95-98; 172-198; 275)), albeit unsuccessfully. While these efforts are commendable, the Court recognizes that the ALJ may have found them to clash with a woman who testifies that, on average, she must lie down for three-quarters or more of a typical working day (see supra at pp. 8 & 9). Still, the Court cannot accept Petitioner's efforts to find work (her impairments notwithstanding) as amounting to a clear and convincing reason to reject her credibility. Her job searches, at times with the aid of vocational rehabilitationists, proved difficult given Petitioner's physical abilities, job availability, and geographic limitations. Most importantly, too, these job searches ultimately failed.

To his credit, the ALJ goes further, suggesting that the medical evidence over time does not appear to square up with Petitioner's allegations of what effectively amounts to a nearly complete disabling condition. For instance:

* On August 14, 2001, on referral from Erik D. Stowell, M.D., Terrence Currie, ATC, an Assessment Specialist, provided workday tolerance recommendations (4-6 hours sitting; 3-4 hours standing; and 2-4 hours walking), commenting that Petitioner could occasionally bend/stoop, squat, crouch, and kneel; and frequently crawl, climb stairs, and balance. (AR 203). Mr. Currie ultimately determined that Petitioner "show[s] the ability to return to work for 8 hours a day, working at recommended light to light-medium level at this time." (AR 204).

* On August 22, 2001, Dr. Stowell concurred with Mr. Currie's recommendations, summarizing that Petitioner "should be able to tolerate an eight hour workday with standing limited to four hours, up to 30 minutes continuously, walking up to 2-4 hours but only short distances at a time.... she should be restricted to only occasional bending, stooping, squatting, crouching or kneeling. " (AR 292).*fn5 Dr. Stowell also offered his thoughts on Petitioner's lifting (20 pounds above shoulders and 25 pounds chair to floor), carrying (27 pounds), and pushing/pulling (50 pounds) limitations. See id.

* On September 25, 2002, Lee Barton, M.Ed., C.R.C., a Vocational Expert, upon a referral from Petitioner's own attorney, Andrew Chasan, evaluated Petitioner "to determine how the injuries she received in her accident of June 25, 1999, would affect her future ability to earn wages." (AR 397). Mr. Barton reviewed the medical records from Dr. Meier, Dr. Stowell, Dr. Calhoun, and the Key Functional Capacity Assessment from Saint Alphonsus Rehabilitation Services. See id. Mr. Barton found that Petitioner's "physical limitations place her in the light category of work." (AR 402). On August 11, 2003, Mr. Barton "st[oo]d by [his] opinion expressed in [his] September 25, 2002 report." (AR 407).

* On January 17, 2003, following over three years of neuropsychological consultation, Dr. Calhoun discussed with vocational counselors "possible jobs that [Petitioner] could participate in." (AR 308). At that time, Dr. Calhoun "approve[d] job descriptions with her being a cashier or a hotel clerk without audit responsibilities." See id.*fn6

* On February 18, 2005, Ward E. Dickey, M.D. found Petitioner to be similarly capable of occasionally lifting and/or carrying 20 pounds; frequently lifting and/or carrying 10 pounds; standing and/or walking (with normal breaks) for at least 2 hours in an 8-hour workday; and sitting (with normal breaks) for about 6 hours in an 8-hour workday (AR 365). Dr. Dickey also found Petitioner to be able to occasionally climb, stoop, kneel, crouch and crawl, while frequently being able to balance. (AR 366).

Together, these records arguably combine to offer clear and convincing explanations as to why the ALJ did not find Petitioner's testimony entirely credible. However, this matter is unique; the medical providers' opinion expectations do not appear to correspond neatly with Petitioner's actual circumstances over time. Petitioner's (1) husband (whom the ALJ specifically found to be credible (AR 28)),*fn7 (2) mother-in-law,*fn8 (3) daughter,*fn9 (4) former boss,*fn10 and (5) close friend*fn11 have all commented on Petitioner's physical condition, consistently stating that Petitioner is incapable of even relatively mundane projects. Such accounts, among others, were considered by the Industrial Commission for the State of Idaho (the "Commission"), finding Petitioner to be permanently and totally disabled. (AR 196); see also (AR 194) ("Mr. Barton [a vocational expert (see supra at p. 12)] is a credible witness who, at the end of the day, had a personal stake in getting Claimant a job - his reputation. Even with his professional standing on the line, he could not find regular work for Claimant.").*fn12 Unfortunately, the ALJ did not devote any considerable effort toward explaining why these other materials - materials which seem to otherwise support (rather than jeopardize) Petitioner's credibility*fn13 - were discounted and/or unpersuasive.

On balance, then, the Court is struggling with concluding that the ALJ's credibility determination, while, perhaps, well-intentioned, is clear and convincing as is the standard that this Court must contrast the ALJ's decision against. The disconnect between the limited, clinical, and experiential expertise of the experts as to what might occur on the one hand, and what appears to be the substantiated reality on the other hand, not only challenges the ALJ's proffered clear and convincing reasons for questioning Petitioner's credibility, it seems to contradict them outright.

This is not to say that this Court conclusively finds Petitioner to be either disabled or not disabled. Relatedly, it is not for this Court to resolve the question of Petitioner's credibility; rather, it is tasked with reviewing the basis of the ALJ's decision on that issue - highlighting those areas that may call into question the decisions reached by the ALJ - and, in doing so, should not be misunderstood as substituting its own judgment for that of the ALJ's. While Petitioner may very well not be disabled, to the extent the ALJ's conclusions in that respect was based on his credibility determination (AR 27), the specific rationale offered for questioning Petitioner's credibility is not clear and convincing. The action is therefore remanded to allow the ALJ to revisit this discrete issue and, in turn, determine its effect, if any, on Petitioner's disability determination.*fn14

2. The ALJ's Residual Functional Capacity Assessment

Even when assuming Petitioner's alternate argument - that "even if... the ALJ's residual functional capacity assessment is correct at the time of the hearing... there is clear evidence that [P]petitioner was not capable of full-time work at least until one year after her onset date" (see Pet.'s Brief, p. 13 (Docket No. 16)) - was properly before the ALJ, its resolution is not warranted at this time given the action's remand on the larger credibility and residual functional capacity assessment issues.


The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences from facts and determining credibility. Allen, 749 F.2d at 579; Vincent ex. Rel. Vincent, 739 F.2d at 1394; Sample, 694 F.2d at 642. If the evidence is susceptible to more than one rational interpretation, one of which is the ALJ's, a reviewing court may not substitute its interpretation for that of the ALJ. Key, 754 F.2d at 1549.

However, the reasons given by the ALJ in support of his determination that Petitioner's complaints are not fully credible are not sufficiently clear and convincing and, therefore, not supported by substantial evidence in the record. It is for this reason that it is necessary to remand this action for further consideration by the ALJ.


Based on the foregoing, Petitioner's request for review is GRANTED. The Commissioner's decision that Petitioner's subjective complaints are not credible is not sufficiently clear and convincing; therefore, this matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum Decision and Order. See Melkonyan v. Sullivan, 501 U.S. 89, 99-100 (1991).

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