The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Currently pending before the Court for its consideration is the Petition for Review (Docket No. 1) of the Respondent's denial of social security benefits, filed by Richard P. Sheridan ("Petitioner") March 28, 2009. The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record ("AR"), and for the reasons that follow, will affirm the decision of the Commissioner.
Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on September 10, 2003, alleging disability based on back, shoulder, and knee problems. This application was denied initially and on reconsideration, and a hearing was held on February 3, 2004. The Administrative Law Judge ("ALJ") issued a decision finding Petitioner not disabled on March 20, 2006 and Petitioner timely requested review by the Appeals Council, which denied his request for review o July 24, 2006. The Petitioner appealed to the United States District Court for the District of Idaho (CV 06-374-C-LMB) and the court remanded the case on March 19, 2007. The Appeals Council remanded the case to the ALJ for a new hearing.
While this appeal was pending, Petitioner filed a second application for disability benefits on August 8, 2006. The claim was denied initially on December 8, 2006, and upon reconsideration on June 21, 2007. This claim was associated with the original claim and ALJ Hayward Reed held a hearing on June 5, 2008, taking testimony from Dr. Malcolm Brahms, an orthopedic medical specialist, Mr. William Wright, a vocational expert, and Petitioner. Another hearing was held on June 26, 2008 and the ALJ took testimony from Dr. Marian Martin, a psychologist, Mr. Daniel R. McKinney, another vocational expert, and Petitioner. ALJ Hayward issued a decision on both claims finding Petitioner not disabled on August 25, 2008. The Appeals Council denied review of the opinion based upon Petitioner's failure to timely file the appeal, making the ALJ's decision the final decision of the Commissioner. The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).
At the time of the last hearing, Petitioner was 49 years of age. Petitioner has a tenth grade education but completed his GED in 1983. Petitioner's prior work experience includes team cleaner, operation manager, vending machine supplier and driver, and long haul driver.
The Commissioner follows a five-step sequential evaluation for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must be determined whether the claimant is engaged in substantially gainful activity. The ALJ found Petitioner had not engaged in substantial gainful activity since his alleged onset date of November 20, 2002. At step two, it must be determined whether claimant suffers from a severe impairment. The ALJ found Petitioner's degenerative disk disease of the lumbar spine, right shoulder injury, left ankle injury, somatoform disorder, and prescription medication abuse severe within the meaning of the Regulations.
Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Petitioner's impairments, including substance abuse, did not meet or equal the criteria for the listed impairments. If a claimant's impairments do not meet or equal a listing, the Commissioner must assess the residual functional capacity ("RFC") and determine at step four whether the claimant has demonstrated an inability to perform past relevant work.
The ALJ found Petitioner was unable to perform his past relevant work as a team cleaner, operation manager, vending machine supplier and driver, or long haul driver. If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to other work that exists in significant levels in the national economy, after considering the claimant's residual functional capacity, age, education and work experience. When the ALJ considered the Petitioner's RFC, including the effects of Petitioner's prescription medication abuse, the ALJ found that Petitioner did retain the residual functional capacity to perform sedentary work*fn1 but that there were no jobs that exist in significant numbers in the national economy that the claimant could perform.
However, pursuant to 20 C.F.R. § 404.1535, the ALJ next proceeded to determine if Petitioner would still be disabled without the impact of the prescription medication abuse. Under 20 C.F.R. § 404.1535, if a petitioner is found to be disabled and there is medical evidence of a substance abuse disorder, the ALJ must determine if the substance abuse disorder is a contributing factor material to the determination of disability. In making that determination, the ALJ must evaluate the extent to which the petitioner's mental and physical limitations would remain if the petitioner stopped the substance abuse. If the remaining limitations are not disabling, the substance abuse is a contributing factor to disability and the petitioner is not disabled. See Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007).
Taking the prescription medication abuse out of the analysis, the ALJ found that Petitioner would continue to have the following severe impairments: degenerative disk disease of the lumbar spine, right shoulder injury, left knee injury, left ankle injury, and somatoform disorder. At step three, the ALJ found that these impairments did not meet or equal a listed impairment. At steps four and five, the ALJ found that if the Petitioner stopped the substance abuse, he would have the residual functional capacity to perform sedentary work*fn2 and that a significant number of jobs exist in the national economy that Petitioner could perform including those of assembler, production inspector/checker and hand packer /packager.
The Petitioner bears the burden of showing that disability benefits are proper because of the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th Cir. 1971). An individual will be determined to be disabled only if her physical or mental impairments are of such severity that she not only cannot do her previous work but is unable, considering her age, education, and work experience, to engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Commissioner if the decision is supported by substantial evidence and is not the product of legal error. 42 U.S.C. § 405(g); Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474 (1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).
The Court cannot disturb the Commissioner's findings if they are supported by substantial evidence, even though other evidence may exist which supports the petitioner's claims. 42 U.S.C. § 405(g); Flatten v. Sec'y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive. Flatten, 44 F.3d at 1457. It is well-settled that, if there is substantial evidence to support the decision of the Commissioner, the decision must be upheld even when the evidence can reasonably support either affirming or reversing the Commissioner's decision, because the Court "may not substitute [its] judgment for that of the Commissioner." Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).
When reviewing a case under the substantial evidence standard, the Court may question an ALJ's credibility assessment of a witness's testimony; however, an ALJ's credibility assessment is entitled to great weight, and the ALJ may disregard self-serving statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). See also, Carter v. Astrue, 295 Fed. Appx. 868, 870 (9th Cir. 2008). Where the ALJ makes a careful consideration of subjective complaints but provides adequate reasons for rejecting them, the ALJ's well-settled ...