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Penny M. Solum v. Michael J. Astrue

March 22, 2011

PENNY M. SOLUM,
PETITIONER,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, RESPONDENT.



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 Penny M. Solum's Motion for Summary Judgment (Docket No. 13), seeking review of the Social Security Administration's decision to deny her claim for disability insurance benefits. The 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

Penny M. Solum ("Petitioner") applied for disability insurance benefits on November 2, 2006, alleging disability beginning May 1, 2006. (AR 14, 101, 161-166). Petitioner's claim was initially denied on December 18, 2006 (AR 116-117) and, again, on reconsideration on April 16, 2007 (AR 119-122). On June 14, 2007, petitioner timely filed a Request for Hearing before an Administrative Law Judge ("ALJ"). (AR 127). On September 3, 2008, ALJ R.J. Payne held a hearing in Spokane, Washington, at which time Petitioner, represented by attorney Dana C.Madsen, appeared and testified. (AR 60-93). An impartial medical expert, Scott Mabee, Ph.D., also appeared and testified during the same September 3, 2008 hearing.

On October 2, 2008, the ALJ issued a decision denying Petitioner's claims, finding that Petitioner was not disabled within the meaning of the Social Security Act, based on her ability to perform past relevant work as a newspaper carrier/deliverer and automobile lot/dealership attendant. (AR 98-110). Petitioner requested a review of the ALJ's October 2, 2008 decision and, on January 9, 2009, the Appeals Council remanded the case to the ALJ for further administrative proceedings. (AR 111-115).

The ALJ held a second hearing on June 4, 2009 in Spokane, Washington at which time Petitioner, represented by attorney Dana C. Madsen, appeared and testified. (AR 38-59). An impartial medical expert, Margaret Moore, Ph.D., also appeared and testified at the June 4, 2009 hearing.

On July 13, 2009, the ALJ issued a second decision denying Petitioner's claims, finding that Petitioner was not disabled within the meaning of the Social Security Act because she maintained the capacity to return to her past work as a newspaper carrier/deliverer. (AR 14-31). Petitioner timely requested review from the Appeals Council on July 24, 2009. (AR 10). On October 16 & 30, 2009, the Appeals Council denied Petitioner's request for review (AR 1-7), making the ALJ's decision the final decision of the Commissioner of Social Security.

Having exhausted her administrative remedies, Petitioner timely files the instant action, arguing that the decisions of the ALJ and Appeals Council are "not supported by substantial evidence." See Pl.'s Mem. of Authorities, p. 16 (Docket No. 13, Att. 1). Specifically, Petitioner asserts that the ALJ (1) erred in finding that Petitioner was capable of performing medium level, simple, unskilled work and, in doing so, failed to provide specific and legitimate reasons for rejecting the opinions of Petitioner's treating physicians; (2) failed to fully develop the record by not sending her for a psychological evaluation; and (3) failed to call a vocational expert at the administrative hearing. See id. at pp. 7 & 11. Petitioner therefore requests that the Court reverse the ALJ's decision and order the payment of benefits. See id. at p. 16.

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 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 her physical/mental impairments are and regardless of her 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 did not engage in substantial gainful activity during the period from her alleged onset date of May 1, 2006 through her date last insured of March 31, 2009. (AR 19).

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: dysthymic disorder (a depressive disorder) and anxiety disorder. (AR 19).

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 22).

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 her ability to do physical and mental work activities on a sustained basis despite limitations from her 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 medium level, simple, unskilled work, with the following limitations: (1) she could lift 50 pounds occasionally and 20-25 pounds frequently; (2) she could sit for two hours at one time for six hours total in an 8-hour workday; (3) she could stand for two hours at a time for six hours total in an 8-hour workday; and (4) she could walk for two hours at a time for six hours total in an 8-hour workday. (AR 24 & 27). As a result, the ALJ determined that Petitioner maintained the capacity to return to her past work as a newspaper carrier/deliverer, as such work "did not require the performance of work-related activities precluded by the claimant's residual functional capacity." (AR 30).

In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of 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, she is not disabled; if the claimant is not able to do other work and meets the duration requirement, she is disabled. Here, the ALJ found that Petitioner is capable of performing her past relevant work and, thus, did not address whether Petitioner is able to do other work. (AR 30-31).

B. Analysis

1. Petitioner's Residual Functional Capacity

An applicant's residual functional capacity is an assessment of that individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis - in other words, what an individual can still do despite her limitations. See SSR 96-8P, 1996 WL 374184. In assessing an applicant's residual functional capacity, the ALJ must consider all of the relevant evidence in the case record, including information about the individual's symptoms and any "medical source statements" submitted by an individual's treating source or other acceptable medical sources. See id. Here, Petitioner takes issue with the ALJ's conclusion that Petitioner has the residual functional capacity to perform medium work (AR 24), arguing that she is "much more limited from a psychological standpoint than what was determined by the ALJ." See Pl.'s Mem. of Authorities, p. 10 (Docket No. 13, Att. 1). On this issue, Petitioner "believes that the ALJ failed to properly reject the opinions of [her] treating and examining physicians" - Scott Reed, M.D., and Dennis R. Pollack, Ph.D. See id. at pp. 7, 12-14.

The Ninth Circuit has held that a treating or examining physician's medical opinion is entitled to special consideration and weight. Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989). These physicians' opinions are given that deference because "[they are] employed to cure and ha[ve] a greater opportunity to know and observe the individual." Id. However, a treating or examining physician's opinion is not necessarily conclusive. Id. at 762. Where the treating or examining physician's opinions are not contradicted by another doctor, they may be rejected only for clear and convincing reasons; even if contradicted by another doctor, they can only be rejected ...


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