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Zahm v. Astrue

August 31, 2010

PAMELA ZAHM, PETITIONER,
v.
MICHAEL ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, RESPONDENT.



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 Pamela Zahm's Petition for Review (Docket No. 1). Zahm seeks review to set aside the final decision of Respondent denying Zahm's claims for Title II Social Security disability and Title XVI Supplemental Security Income benefits. She brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c). The parties consented to having the United States Magistrate Judge conduct all further proceedings in this case. (Docket Nos. 12 & 13). Having carefully reviewed and considered the pleadings, briefs and administrative record, and being otherwise fully advised, the Court enters the following Memorandum Decision and Order reversing the Commission's decision and remanding for further administrative proceedings.

ADMINISTRATIVE PROCEEDINGS

Paula Zahm ("Petitioner" or "Claimant") protectively filed for a period of disability and disability insurance benefits under Title II of the Social Security Act (the "Act"), and supplemental security income benefits under Title XVI of the Act, on February 10, 2004 (AR 19, 125). Petitioner alleges disability in the form of several impairments, or combination thereof, including chronic pain in her back and neck from degenerative disk disease and spasms from a car accident, bipolar disorder, post-traumatic stress disorder (PTSD), asthma, chronic obstructive pulmonary disease (COPD), coronary artery disease, heart attack, headaches and fibromyalgia. (AR 116-17, 98, 414). In her petition she alleges an onset date of January 1, 2001. (Id.)

The Commissioner denied Petitioner's application initially on November 10, 2004 (AR 63), and upon reconsideration on March 10, 2005, (AR 56). Petitioner filed a timely request for a hearing which took place before Administrative Law Judge Hayward C. Reed on December 12, 2006. (AR 19, 410 - 452). Petitioner was represented by attorney Andrea Cardon. (AR 19). Vocational Expert (VE) Karen S. Black also appeared and testified at the hearing. (Id.) At the hearing, Petitioner amended her onset date to November 21, 2002, the date of her car accident. (AR 414).

On June 18, 2007, the ALJ denied Petitioner's claim based on a finding that Petitioner "has not been under a disability, as defined in the Social Security Act, from January 1, 2001 through the date of" the ALJ's decision. (AR 34)*fn1

Petitioner requested the Appeals Council review the ALJ's decision. (AR 14, 15). The Appeals Council denied review on January 16, 2008, making the AJL's decision the final decision of the Commissioner of Social Security. (AR 8 - 10).

Having exhausted her administrative remedies, Petitioner timely filed the instant action. Petition for Review (Docket No. 1). Petitioner requests that the ALJ's decision be reversed or, in the alternative, that this matter be remanded for an ALJ hearing de novo.

BACKGROUND

At the time of the hearing before the ALJ, Petitioner was forty-nine years old, and three months short of her fiftieth birthday. (AR 68). She attended school until the ninth grade, and obtained her GED in 1975. (AR 124, 416). She completed barber college in 1986. (AR 124). She has the ability to communicate, fluently, in English. (AR 116). Further, Petitioner has worked as a barber and as a housekeeper. (AR 118, 416, 447). Petitioner has stated that due to her disability, she has been unable to perform either of these past jobs. (AR 68, 117, 418 - 20).

The ALJ determined that Petitioner does have the following severe impairments: fibromyalgia syndrome, degenerative changes of the cervical spine, a bipolar II disorder, and an anxiety related disorder. (AR 22 (citing 20 CFR 404.1520(c) and 416.920(c))). Notwithstanding, the ALJ concluded that 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 and denied her application for benefits accordingly. (AR 34-35).

STANDARD OF REVIEW

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 ALJ's decision adopted by the Appeals Council, that Petitioner was not disabled, is supported by substantial evidence and whether the finding is based on application of proper legal standards.

DISCUSSION

A. Sequential Process

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 January 1, 2001. (AR 21).

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 the following severe impairments: fibromyalgia syndrome, degenerative changes of the cervical spine, a bipolar II disorder, and an anxiety related disorder. (AR 22).

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 examined the listing requirements for musculoskeletal (1.00ff) and mental (12.00ff) impairments and concluded that Petitioner "does 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 24-25).

The fourth step of the evaluation process requires the ALJ to determine whether the claimant's residual functional capacity (RFC) 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 lift 20 pounds occasionally and 10 pounds frequently." (AR 25). He further found the she can "stand, walk, and/or sit up to 6 hours each during the course of an 8 hour day, with normal breaks," (AR 23--26) and that "she is limited to occasional crouching, crawling, stooping and balancing etc." (Id.) With respect to her mental impairments, the ALJ found Petitioner "slightly impaired in her ability to remember and carry out detailed instructions and moderately impaired in her ability to respond properly to work pressures in a usual work setting," and that she "has slight restrictions in her ability to interact appropriately with supervisors and co-workers," and to "respond appropriately to changes in routine work setting." (AR 25). The ALJ concluded that Petitioner is restricted to "no more than light exertional level work." (AR 34).

Concluding his analysis at step four, the ALJ found Petitioner capable of performing her past relevant work as a hairstylist and housekeeper, "both considered light exertional level unskilled-to-semiskilled work." (AR 34). The ALJ further concluded that neither past relevant work requires the performance of work-related activities precluded by Petitioners' functional capacity. (Id.) Accordingly, the ALJ concluded that Petitioner "has not been under a disability, as defined by the Social Security Act, from January 1, 2001, through the date of this decision." (AR 34).*fn2

B. Analysis

Petitioner challenges the Commissioner's final determination on numerous grounds. First, Petitioner claims that she is prejudiced in challenging the ALJ's decision and that the court cannot conduct a proper judicial review because of the fact that approximately one line per page is unreadable due to a typographical or printing error. Petitioner's Brief, p. 2; Petitioner's Reply Brief, pp. 1 -2. Second, Petitioner claims the ALJ committed reversible error in step two of the sequential process by failing to make any findings of severity for several of Petitioner's impairments, or combination thereof, including lumbar degenerative disk disease, COPD, coronary artery disease, asthma, PTSD and headaches. Petitioner's Brief, pp. 8-9. Third, Petitioner claims the ALJ committed reversible error in step three of the sequential process by failing to address whether the Petitioner met or equaled listing 3.02, and in failing to obtain a consultative medical exam, in regard to her COPD. Id. at 9-10. Fourth, Petitioner claims the ALJ committed reversible error at step four of the sequential process by not properly considering Petitioner's impairments listed above, or combination thereof, and how they would affect the Petitioner's mental and physical residual functional capacity. Id. at 10. Fifth, Petitioner contends that the ALJ committed reversible error in not properly discounting the treating physician opinions. Id. at 12-3. Sixth, Petitioner claims that the ALJ did not properly evaluate "other source" opinions or lay witness testimony. Id. at 13-15. Seventh, Petitioner claims the ALJ ...


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