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Hersey v. Colvin

United States District Court, D. Idaho

September 29, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Respondent.


          Honorable Candy W. Dale, United States Magistrate Judge


         Pending before the Court is the Petition for Review of Respondent's denial of Social Security Disability Benefits, filed by Larry Leroy Hersey on March 12, 2015. (Dkt. 1.) Pursuant to 28 U.S.C. Section 636(c), the parties have consented to the exercise of jurisdiction over this matter by the undersigned United States Magistrate Judge. (Dkt. 9.) 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 Social Security Disability Benefits on July 13, 2012, claiming disability beginning on January 31, 2011, due to various physical and mental conditions.[1] His application was denied initially and again on reconsideration, and a hearing was held before Administrative Law Judge (ALJ) John T. Molleur on December 21, 2012. After hearing testimony from Petitioner and a vocational expert, ALJ Molleur issued a decision finding Petitioner not disabled on October 17, 2013. On January 9, 2015, the Appeals Council denied Petitioner's request for review, making the ALJ's decision the final agency decision. Petitioner appealed this final decision to the Court on March 13, 2015. The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         Petitioner was born on December 7, 1967. He graduated from high school and served in the military from 1987 through 2011. Petitioner's past relevant work includes work as an airplane mechanic.


         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 substantial gainful activity. The ALJ found Petitioner has not engaged in substantial gainful activity since his alleged onset date of January 31, 2011. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's right hip degenerative joint disease, ankylosing spondylosis, degenerative disease of the cervical and lumbar spine, sleep apnea, migraines, and degenerative joint disease of the hands severe within the meaning of the Regulations.

         Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found Petitioner's impairments did not meet or equal the criteria for the listed impairments, specifically considering Listing 1.02 (major dysfunction of a joint), Listing 1.04 (disorders of the spine), and Listing 3.10 (sleep related breathing disorders). If a claimant's impairments do not meet or equal a listing, the Commissioner must assess the claimant's 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 not able to perform past relevant work as an airplane mechanic. 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.

         Here, the ALJ found Petitioner retained the RFC to perform sedentary work, but with no climbing of ropes, ladders or scaffolds; he can perform other postural activities occasionally; he must limit overhead reaching with both upper extremities to occasional; he must have no direct exposure to vibrations and no concentrated exposure to extremes of cold, dusts, fumes, gases, poor ventilation, and noxious odors; he cannot work on unprotected heights; he can engage in frequent reaching in all other directions with both upper extremities; he can occasionally forcefully grip and twist with both hands; and he can only frequently handle/finger with both hands. With this RFC, the ALJ determined Petitioner could perform the functions of representative occupations such as room service order clerk, document preparer, and call out operator.


         Petitioner bears the burden of showing that disability benefits are appropriate 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. Finch, 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 that supports the petitioner's claims. 42 U.S.C. § 405(g); Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by substantial evidence, will be conclusive. Flaten, 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 a claimant's self-serving statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ makes a careful consideration of subjective complaints but provides adequate reasons for rejecting them, the ALJ's well-settled role as ...

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