The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court is Darrin Taggart's Petition for Review (Dkt. 1), seeking review of the Social Security Administration's final decision to deny his claim for Supplemental Security Income 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
The Petitioner Darrin Taggart ("Petitioner") first applied for Social Security disability benefits in January of 2006. That application was initially denied on June 6, 2006 and Petitioner did not appeal. On June 21, 2007, Petitioner filed a second application for Supplemental Security Income. Petitioner's second application was initially denied and, again, denied on reconsideration. Petitioner timely filed a Request for Hearing before an Administrative Law Judge ("ALJ"). On July 21, 2009, ALJ Michael Kilroy held a hearing in Boise, Idaho, at which time Petitioner, represented by attorney Debra Young Irish, appeared and testified. (AR 65). A vocational expert, Anne Aastum, and a medical expert, James Bruce, also testified at the hearing. Id. Petitioner requested that his January 2006 application be reopened and amended his onset date to December 16, 2004. AR 73-74.
At the time of the hearing before the Administrative Law Judge, the Petitioner was 47 years old. He had completed some college classes and had work experience as an electronics mechanic, a computer programmer, and a network control operator. AR 207, 246.
On November 24, 2009, the ALJ issued a decision, denying Petitioner's claims, finding that Petitioner was not disabled within the meaning of the Social Security Act. AR 15-25. Petitioner requested review from the Appeals Council on November 24, 2009. AR 2. On July 27, 2011, the Appeals Council denied Petitioner's request for review (AR 2-3), making the ALJ's decision the final decision of the Commissioner of Social Security.
Having exhausted his administrative remedies, Petitioner timely filed the instant action, arguing that the ALJ failed to give appropriate weight to the opinions of Petitioner's treating physician and failed to properly support his finding that Petitioner's allegations regarding excess pain were not credible. See Pet.'s Br., pp. 6, 11 (Dkt. 16). Petitioner requests that the Court reverse the ALJ's decision and grant Petitioner benefits or, alternatively, remand the case for further proceedings. See id. at p. 15.
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). That is, 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 of evidence, 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).
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 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 December 16, 2004, the alleged onset date. (AR 17).
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: pain disorder, depression, anxiety and post laminectomy syndrome with lumbar radiculopathy. (AR 17).
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 does not have an impairment (or combination of impairments) that meets or medically equals a listed impairment. AR 18.
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 has the residual functional capacity to perform light work, except that Petitioner: must be allowed to alternate between sitting/standing/walking for an eight hour workday, including sitting only up to 30 to 60 minutes at one time, standing only up to 30 minutes at one time, and sitting only up to 30 to 60 minutes at one time; he should crawl seldom, if at all, no climbing ladders or scaffolds, and all other postural activities limited to occasional; he should avoid concentrated exposure to extreme temperatures, primarily cold temperatures, as well as vibrations, hazards, and uneven, rough, wet, and slippery surfaces; he should not have dealings with large numbers of people at any one time or a constant stream of smaller numbers, and he cannot work in a job that has a high, constant focus throughout an eight hour workday, nor a job that has high, constant stress components throughout an eight hour workday. AR 20.
In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of his/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, 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 is unable to perform any past relevant work. AR 23. However, considering Petitioner's age, education, work experience, and residual functional capacity, the ALJ concluded that "there are jobs that exist in significant numbers in the national economy that [Petitioner] can perform" - for example, injection molding machine tender, survey worker, and data entry clerk. AR 14.
Petitioner argues that the ALJ failed to give appropriate weight to the opinions of Petitioner's treating physician and failed to properly support his finding that Petitioner's allegations regarding excess pain were not credible. See Pet.'s, pp. 6, 11 (Dkt. 16). The Court will first address the credibility issue.
1. Petitioner's Credibility
The ALJ found that Petitioner's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [his] statements concerning the intensity, persistence and limited effects of these symptoms are not credible to the extent they are inconsistent with the [ALJ's] residual functional capacity assessment." AR 23.
In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ must determine whether there is "'objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). If the claimant has presented such evidence, and there is no affirmative evidence of malingering, then the ALJ must give "'specific, clear and convincing reasons'" in order to reject the claimant's testimony about the severity of the symptoms. Id. (quoting Lingenfelter, 504 F.3d at 1036). In evaluating the claimant's testimony, the ALJ may use "'ordinary techniques of credibility evaluation.'" Turner, 613 F.3d at 1224 n. 3 (quoting Smolen, 80 F.3d at 1284). For instance, the ALJ may consider "whether the claimant engages in daily activities inconsistent with the alleged symptoms." Lingenfelter, 504 F.3d at 1040. Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment. See Turner, 613 F.3d at 1225; Valentine, 574 F.3d at 693. See also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).
Respondent here does not dispute that there is "reliable evidence" supporting Petitioner's "allegations that he experienced some limitations," but argues that the evidence does not support Petitioner's allegations that he was incapable of working. Resp.'s Br., p. 7 (Dkt. 17) (citing AR 17-24). In making his credibility assessment, the ALJ noted that Petitioner's treating physician, Dr. Dubose, reported on "a possibility of malingering" and cited to a reviewing physician's similar report to find that Petitioner's ...