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Cook v. Astrue

September 8, 2010

ROBERT J. COOK, PETITIONER,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE UNITED STATES SOCIAL SECURITY ADMINISTRATION, RESPONDENT.



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

MEMORANDUM DECISION AND ORDER

Now pending before the Court is Robert J. Cook's Petition for Review (Docket No. 1), seeking review of the Social Security Administration's final decision to deny his claim for 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:

I. ADMINISTRATIVE PROCEEDINGS

On May 7, 2004, Robert J. Cook ("Petitioner") applied for disability insurance benefits and supplemental security income payments, alleging disability beginning January 1, 2004. (AR 77-79). Petitioner's applications were denied initially on October 12, 2004 (AR 71) and, again, upon reconsideration on February 17, 2005 (AR 64). Petitioner filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). (AR 63). On September 19, 2006, ALJ Hayward Reed held a hearing in Boise, Idaho, at which time, Petitioner, represented by attorney Andrea Cardon, appeared and testified. (AR 343). A vocational expert, Anne F. Aastum, and Petitioner's ex-wife, Rebecca Cook, also appeared and testified during the same September 19, 2006 hearing. (AR 343).

On June 6, 2007, the ALJ issued a decision denying Petitioner's claims, finding that Petitioner was not disabled within the meaning of the Social Security Act. (AR 21-40). Petitioner timely requested review from the Appeals Council on August 3, 2007. (AR 20). On January 30, 2009, the Appeals Council denied Petitioner's request for review (AR 7), making the ALJ's decision the final decision of the Commissioner of Social Security.

Having exhausted his administrative remedies, Petitioner timely files the instant action, arguing that "Defendant and ALJ Reed's decision that Mr. Cook is not disabled is not supported by substantial evidence, contains errors of law, and constitutes an abuse of discretion." See Brief in Supp. of Pet. for Review, p. 2 (Docket No. 13). Specifically, Petitioner asserts that the ALJ:

(1) failed to properly evaluate the opinions of Petitioner's treating physicians (see id. at pp. 4-6); (2) failed to properly evaluate Petitioner's credibility (see id. at pp. 6-8); (3) improperly rejected the testimony of lay witness testimony during the administrative hearing on September 19, 2003 (see id. at pp. 7-8); (4) failed to properly discuss the non-examining consultants' opinions (see id. at p. 9); (5) inappropriately relied on the vocational expert's testimony in response to hypothetical questions (see id. at pp. 9-10); and (6) incorrectly placed Petitioner within a "light work" category instead of a more-appropriate "sedentary work" category (see id. at pp. 11-12). Petitioner therefore requests that the ALJ's decision be reversed and/or remanded to allow the ALJ an opportunity to further reevaluate the evidence.

II. STANDARD OF REVIEW

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).

III. DISCUSSION

A. Sequential Processes

In evaluating the evidence presented at an administrative hearing, the ALJ must follow a sequential process when 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 "has not engaged in substantial gainful activity since January 1, 2004, the alleged onset date." (AR 26).

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 combination of impairments: (1) a history of L5-S1 herniated nucleus pulposus, status post discectomy in October 1986; (2) a right subtalar joint arthritis, status post history of bilateral calcaneal fractures to the heels in August 1998 with closed treatment fixation; (3) peripheral vertigo; (4) unspecified, mild sensorineural hearing loss; and (5) degenerative disc and facet disease of the cervical spine. (AR 26-27). The ALJ went on to state that "these impairments cause more than a slight abnormality or a combination of slight abnormalities on the claimant's ability to work, therefore, they are severe." (AR 27).

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 27-32).

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 could perform a range of work with the following limitations: (2) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand and/or walk at least 2 hours of an 8-hour workday; (3) sit throughout an 8-hour workday with the ability to alternate positions as needed to relieve pain and discomfort; (4) push and pull within the weight limitations; (5) frequently kneel or crawl; (6) occasionally climb stairs or ramps, balance, stoop, or crouch; (7) never climb ladders, ropes, or scaffold; and (8) avoid concentrated exposure to temperature extremes, hazards, or vibration. (AR 32-38). In doing so, however, the ALJ further found that Petitioner is unable to perform any past relevant work. (AR 38).

In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of his 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 is not disabled; if the claimant is not able to do other work and meets the duration requirement, he is disabled. Here, the ALJ found that Petitioner was not able to perform past relevant work; however, the ALJ also found that Petitioner maintained the ability to perform a number of unskilled, light occupations in the national economy, including survey worker, cashier II, and an office helper. (AR 39-40).

B. Analysis

1. Petitioner's Medical Providers' Opinions

The ALJ rejected the medical opinions that suggested Petitioner maintained a covered disability, even though those opinions originated from Petitioner's treating physicians. The ALJ relied instead on the objective medical evidence of record, including evidence from Petitioner's other medical providers.

The Ninth Circuit has held that a treating physician's medical opinion is entitled to special consideration and weight. Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989). The treating physician's opinion is given that deference because "he is employed to cure and has a greater opportunity to know and observe the individual." Id. Where the treating physician's opinions are not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Even if the treating physician's opinions are contradicted by another doctor, they can only be rejected if the ALJ provides specific and legitimate reasons, supported by substantial evidence in the record for doing so. Id. Regardless, a treating physician's opinion on the ultimate issue of disability is not conclusive. Rodriguez, 876 F.2d at 762 (citations omitted); see also SSR 96-5P, 1996 WL 374183, *2 ("The regulations provide that the final responsibility for deciding [whether an individual is 'disabled' under the Act] . . . is reserved to the Commissioner."); 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability.").

Therefore, merely concluding that a particular physician is a treating physician does not mandate the adoption of that physician's opinions. In addition to the standard outlined above, treating physician's opinions are given less weight if they are inconsistent with the record as a whole or if the conclusions consist of vague, conclusory statements unsupported by medically acceptable data. Stormo v. Barnhart, 377 F.3d 801, 805-06 (8th Cir. 2004); see also Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (lack of objective ...


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