United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Ronald E. Bush Chief U.S. Magistrate Judge
before this Court is Petitioner Roberta Austin's Petition
for Review (Docket No. 1), seeking review of the Social
Security Administration's final decision to deny her
claim for disability and disability insurance benefits.
See generally Pet. for Review (Docket No. 1). This
action is brought pursuant to 42 U.S.C. § 405(g). Having
carefully considered the record and otherwise being fully
advised, the Court enters the following Memorandum Decision
February 2, 2012, Roberta Austin (“Petitioner”)
filed an application for Title XVI disability benefits, and,
on February 8, 2012, an application for Title II disability
insurance benefits - Petitioner alleged disability beginning
December 22, 2011. These claims were initially denied on
April 20, 2012 and, again, on reconsideration on August 9,
2012. On September 15, 2012, Petitioner timely filed a
Request for Hearing before an Administrative Law Judge
(“ALJ”). On May 1, 2013, ALJ John T. Molleur held
a hearing in Boise, Idaho, at which time Petitioner,
represented by attorney Matt Steen, appeared and testified.
Impartial vocational expert, Kent Graham, also appeared and
testified during the same May 1, 2013 hearing.
5, 2013, the ALJ issued a Decision denying Petitioner's
claim, finding that Petitioner was not disabled within the
meaning of the Social Security Act. Petitioner timely
requested review from the Appeals Council on June 24, 2013
and, on November 10, 2014, the Appeals Council denied
Petitioner's Request for Review, making the ALJ's
decision the final decision of the Commissioner of Social
exhausted her administrative remedies, Petitioner timely
filed the instant action, arguing that “[t]he
conclusions of law made by the [ALJ] and the Appeals Council
that Petitioner was not under a disability are incorrect and
contrary to the laws and regulations of the Social Security
Act.” Pet. for Review, p. 6 (Docket No. 1). In
particular, Petitioner contends that (1) the ALJ erred in his
assessment of Petitioner's credibility; (2) the ALJ erred
in assigning little weight to Petitioner's treating
physicians; and (3) in light of these errors, the ALJ failed
to properly establish that Petitioner is able to do work that
exists in significant numbers in the national economy.
See Pet.'s Brief, p. 2 (Docket No. 16).
Petitioner therefore requests that the Court either reverse
the ALJ's decision and find that she is entitled to
disability benefits, or, alternatively, remand the case for
further proceedings and award attorneys' fees.
See Pet. for Review, pp. 6-7 (Docket No. 1).
STANDARD OF REVIEW
upheld, the Commissioner's decision must be supported by
substantial evidence and based on proper legal standards.
See 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. See 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.
See Hall v. Sec'y of Health, Educ. &
Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
evidence” is defined as such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. See Richardson v. Perales, 402 U.S. 389,
401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413
(9th Cir. 1993); Flaten 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 (see 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,
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 (see 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
(see Sample v. Schweiker, 694 F.2d 639, 642 (9th
Cir. 1982)). Where the evidence is susceptible to more than
one rational interpretation, the reviewing court may not
substitute its judgment or interpretation of the record for
that of the ALJ. See Flaten, 44 F.3d at 1457;
Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
respect to questions of law, the ALJ's decision must be
based on proper legal standards and will be reversed for
legal error. See 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.” See
Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
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
first step requires the ALJ to determine whether the claimant
is engaged in substantial gainful activity
(“SGA”). See 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.
See 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.
See 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. See 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 22, 2011, the alleged onset date.
See (AR 27).
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. See 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. See 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. See 20
C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ
found that Petitioner had the following severe impairments:
“fibromyalgia, degenerative dis[c] disease of the
lumbar and cervical spine, diabetes mellitus, migraine
headaches, schizoaffective disorder, post-traumatic stress
disorder (“PTSD”), general anxiety disorder, and
bipolar disorder.” (AR 27-28).
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. See 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. See 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. See 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. See (AR 28-30).
fourth step of the evaluation process requires the ALJ to
determine whether the claimant's residual functional
capacity (“RFC”) is sufficient for the claimant
to perform past relevant work. See 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An
individual's RFC is her ability to do physical and mental
work activities on a sustained basis despite limitations from
her impairments. See 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. See 20 C.F.R.
§§ 404.1560(b), 404.1565, 416.960(b), 416.965.
Here, the ALJ determined that Petitioner has the RFC
“to perform sedentary work as defined in 20 C.F.R.
§ 404.1567(a), ” except she can:
perform all postural activities occasionally and is limited
to only occasional overhead reaching with both upper
extremities. Additionally, the [Petitioner] is limited to
only frequent handling and fingering with both upper
extremities. Furthermore, the claimant should have no direct
exposure to vibration. The claimant is limited to only
frequent interaction with co-workers and supervisors, but can
have no contact with the general public. Moreover, her work
is limited to a low stress environment with only occasional
decision-making or changes in the work setting.
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. See 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 unable to perform any past relevant work.
See (AR 36). However, the ALJ further found that
there are jobs that exist in significant numbers in the
national economy that Petitioner can perform, including
washroom operator, waxer, and hand mounter. See (AR
36-37). Therefore, based on Petitioner's age, education,
work experience, and RFC, the ALJ concluded that Petitioner
“has not been under a disability, as defined in the
Social Security Act, from December 22, 2011, through the date
of this decision.” (AR 37).
asks the Court to reverse the ALJ's Decision “due
to both the ALJ's consideration of Austin's
credibility and his assignment of weight to the opinions of
her treating physicians[;] [c]orrect evaluation of both these
factors under the law results in such a restrictive RFC, that
the occupational base is entirely eroded, and the ALJ cannot
establish the presence of any employment that [Petitioner]
can perform on a regular and continuing basis.”
Pet.'s Brief, p. 7 (Docket No. 16). The undersigned
considers these arguments below - preliminarily considering
the ALJ's analysis of Petitioner's treating
physicians' opinions because of its possible interplay
with (and effect upon) the ALJ's assessment of
The ALJ Properly Considered Petitioner's Treating
medical opinion of a treating physician is entitled to
special consideration and weight. See Rodriguez v.
Bowen, 876 F.2d 759, 761 (9th Cir. 1989).
Such deference is warranted because the treating physician
“is employed to cure and has a greater opportunity to
know and observe the individual.” Id. However,
a treating physician's opinion is not necessarily
conclusive. See id. at 762. If the treating
physician's opinions are not contradicted by another
doctor, they may be rejected only for clear and convincing
reasons. See Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995). Even if the treating
physician's opinions are contradicted by another doctor,
they can only be rejected if the ALJ provides specific and
legitimate reasons supported by substantial evidence in the
record. See id. A lack of ...