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Therese E. Mckay v. Michael J. Astrue

September 30, 2011


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


Pending before the Court is Therese E. McKay's Petition for Review (Docket No. 1), seeking review of the Social Security Administration's final decision to deny her 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:


On October 23, 2006, Therese E. McKay ("Petitioner") filed a Title II application for a period of disability and for disability insurance benefits. (AR 11). She originally alleged a disability onset date of October 7, 2003, and later amended that date to June 17, 2005. (AR 29). Petitioner's application was denied initially on January 25, 2007 (AR 86) and again, upon reconsideration, on June 25, 2007. (AR 88). Petitioner filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). (AR 98-99). On April 28, 2009, ALJ Michael A. Kilroy held a hearing in Boise, Idaho, at which time Petitioner, represented by attorney Hugh V. Mossman, appeared and testified. (AR 11). James Bruce, Ph.D., an impartial medical expert, and Anne Aastum, an impartial vocational expert, also appeared and testified at the hearing. (AR 71-84). David McKay, Petitioner's husband, was present at the hearing, but did not testify. (AR 25).

On August 31, 2009, the ALJ issued a decision denying Petitioner's claims, finding that she was not disabled within the meaning of the Social Security Act. (AR 8-22). Petitioner timely requested an Appeals Council review of the ALJ's decision; the Appeals Council denied review on March 2, 2010, making the ALJ's decision the final decision of the Commissioner of Social Security. (AR 1-4).

Having exhausted her administrative remedies, Petitioner timely files the instant action, arguing that the ALJ's "decision is not supported by substantial evidence and is inconsistent with statutory and case law authority." See Brief in Supp. of Pet. for Review, p. 7 (Docket No. 12). Specifically, Petitioner asserts that: (1) the ALJ's findings rejecting Petitioner's credibility are not supported by the record, (2) the ALJ improperly rejected the testimony of Dr. Grant Belnap and Bette Carlson, LCSW, (3) the ALJ failed to adequately consider the lay statement of David McKay, and (4) the ALJ's findings with respect to Petitioner's residual functional capacity are not supported by the evidence. Id. Petitioner requests that the Court reverse the ALJ's decision and remand the case for an immediate award of benefits. Id. at 17.


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. "But the Commissioner's decision 'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Bustamante v. Massanari, 262 F.3d 949, 953 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 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 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 "did not engage in substantial gainful activity during the period from her amended alleged onset date of June 17, 2005 through her date last insured of June 30, 2008." (AR 13).

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) depression, (2) anxiety, (3) hypothyroidism, (4) lupus, and (5) fibromyalgia. (AR 13).

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 16-17).

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 had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b), except as follows: (1) she could lift/carry 20 pounds occasionally and 10 pounds frequently; (2) she could alternate through walking, standing, and sitting for an 8-hour period of time, with the limitation that she could walk 1 mile maximum at one time, stand 1 hour maximum at one time, and sit 1 hour maximum at one time; (3) she could not climb ladders or scaffolding, but she could occasionally climb stairs; (4) she could perform all other postural activities occasionally, if not frequently; (5) she should avoid concentrated exposure to vibrations or hazards; (6) she could frequently tolerate brief and superficial contact with the public, and one-on-one contact; (7) she could occasionally interact with small numbers of the public; (8) she had the ability to work with a few co-workers, though preferably not in a place with so many that it became distracting, or in a place where the activity of the co-workers was such that it was a distracting type of place in which to work; (9) she could tolerate supervision so long as it was not constant or over-the-shoulder; (10) she could perform unskilled and semi-skilled routine jobs, as well as jobs that involved occasional new learning; and (11) she should avoid work which required high constant focus or high constant stress. (AR 17-18).

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 was able to perform past relevant work as a data entry clerk and as a general clerk; therefore, the ALJ did not address whether Petitioner is able to do other work. (AR 21).

B. Analysis

1. Petitioner's Credibility

Petitioner challenges the ALJ's conclusion that Petitioner's statements concerning the intensity, persistence and limiting effects of her symptoms are not credible to the extent they are inconsistent with his findings as to her residual functional ...

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