United States District Court, D. Idaho
CARL G. LANDOWSKE, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Respondent.
MEMORANDUM DECISION AND ORDER
Honorable Ronald E. Bush Chief U.S. Magistrate Judge
is Petitioner Carl G. Landowske's Petition for Review
(Dkt. 1), appealing the Social Security Administration's
final decision to deny his claim for disability and
disability insurance benefits. See generally Pet. for
Review (Dkt. 1). This action is brought pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). Having carefully
considered the record and otherwise being fully advised, the
Court enters the following Memorandum Decision and Order:
December 18, 2012, Carl G. Landowske
(“Petitioner”) protectively applied for Title II
disability and disability insurance benefits, and for Title
XVI supplemental security income. Petitioner alleged
disability beginning March 7, 2011, which he later amended to
December 13, 2011. His claims were denied initially on April
17, 2013 and then again on reconsideration on July 18, 2013.
On July 30, 2013, Petitioner timely filed a Request for
Hearing before an Administrative Law Judge
(“ALJ”). On June 18, 2014, ALJ Luke A. Brennan
held a hearing in Boise, Idaho, during which Petitioner,
represented by attorney Taylor Mossman, appeared and
testified. Impartial vocational expert Kent Granat also
appeared and testified at the hearing.
October 6, 2014, the ALJ issued a Decision denying
Petitioner's claim, concluding that Petitioner was not
disabled within the meaning of the Social Security Act.
Petitioner timely requested review from the Appeals Council
on or about December 5, 2014 and, on March 4, 2016, the
Appeals Council denied Petitioner's Request for Review,
making the ALJ's decision the final decision of the
Commissioner of Social Security.
exhausted his administrative remedies, Petitioner timely
filed the instant action, arguing that “[t]he decision
denying Petioner's claim is not in accordance with the
purpose and intent of the Social Security Act, nor is it in
accordance with the law, nor is it in accordance with the
evidence, but contrary thereto and to the facts and against
the evidence, in that Petitioner is disabled from performing
substantial gainful activity.” Pet. for Review 2 (Dkt.
1). Petitioner contends the ALJ erred in four ways:
(1) in rejecting the opinion of Petitioner's treating
provider; (2) in concluding Petitioner could return to past
relevant work as a clinical counselor;
(3) in assigning Petitioner a residual functional capacity
that is not supported by the record; and
(4) in rejecting Petitioner's subjective complaints.
Pet'r's Br. 9-10 (Dkt. 13). Petitioner asks the Court
to remand for an immediate award of benefits. Id. at
STANDARD OF REVIEW
upheld, the Commissioner's decision must be supported by
substantial evidence and based on proper legal standards. 42
U.S.C. § 405(g); Trevizo v. Berryhill, __ F.3d
__, 2017 WL 4053751, *6 (9th Cir. 2017). 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. See Treichler v. Comm'r of
Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
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); Ludwig v. Astrue, 681 F.3d 1047,
1051 (9th Cir. 2012). The standard requires more than a
scintilla but less than a preponderance (Trevizo,
2017 WL 4053751 at *6), and “does not mean a large or
considerable amount of evidence.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).
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. Richardson, 402 U.S. at 401;
see also Ludwig, 681 F.3d at 1051. The ALJ is
responsible for determining credibility, resolving conflicts
in medical testimony, and resolving ambiguities.
Treichler, 775 F.3d at 1098. Where the evidence is
susceptible to more than one rational interpretation, the
reviewing court must uphold the ALJ's findings if they
are supported by inferences reasonably drawn from the record.
Ludwig, 681 F.3d at 1051. In such cases, the
reviewing court may not substitute its judgment or
interpretation of the record for that of the ALJ. Batson
v. Comm'r of Social Sec., 359 F.3d 1190, 1196 (9th
respect to questions of law, the ALJ's decision must be
based on proper legal standards and will be reversed for
legal error. Zavalin v. Colvin, 778 F.3d 842, 845
(9th Cir. 2015); Treichler, 775 F.3d at 1098.
Considerable weight must be given to the ALJ's
construction of the Social Security Act. See Vernoff v.
Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 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).
evaluating the evidence presented at an administrative
hearing, the ALJ must follow a sequential process in
determining whether a person is disabled in general (20
C.F.R. §§ 404.1520, 416.920) - or continues to be
disabled (20 C.F.R. §§ 404.1594, 416.994) - within
the meaning of the Social Security Act.
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 work activity
that is both substantial and gainful. 20 C.F.R. §§
404.1572, 416.972. “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 is engaged in SGA, disability benefits are
denied regardless of his medical condition, 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 13, 2011, the amended alleged onset
date. (AR 14).
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 physical or mental 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
establishes only a slight abnormality or a combination of
slight abnormalities that cause no more than minimal
limitation on an individual's ability to work. SSR 96-3p,
1996 WL 374181 (July 2, 1996); see also 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:
“ischemic heart disease, status post myocardial
infarction; coronary artery disease; hypertension; obesity;
hyperlipidemia; obstructive sleep apnea.” (AR 15).
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 a listed impairment, his claim cannot
be resolved at step three and the evaluation proceeds to step
four. 20 C.F.R. §§ 404.1520(e), 416.920(e). Here,
the ALJ concluded that Petitioner does not have an impairment
or combination of impairments that meets or medically equals
the severity of one of the listed impairments. (AR 18).
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. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual's
RFC is his or her ability to do physical and mental work
activities on a sustained basis despite limitations from his
or her impairments. 20 C.F.R. §§ 404.1545, 416.945.
An individual's past relevant work is work he or she
performed within the last 15 years or 15 years prior to the
date that disability must be established, as long as the work
was substantial gainful activity and lasted long enough for
the claimant to learn to do the job. 20 C.F.R. §§
404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ
determined that Petitioner has the RFC:
to lift and carry 10 pounds occasionally, while able to stand
or walk for a total of 2 hours and sit for a total of 6 hours
in an 8-hour workday. He is unable to climb ladders or
scaffolds, but is able to occasionally climb ramps or stairs,
and he can frequently stoop, kneel, crouch and crawl. He is
able to tolerate occasional exposure to extreme cold, extreme
heat, and humidity, and he should avoid all exposure to
hazards, including unprotected heights and moving machinery.
(AR 19). He further found that Petitioner is able to perform
his past relevant work as a Clinical Counselor. (AR 26).
fifth and final step, if it has been established that a
claimant can no longer perform past relevant work because of
his 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 Garrison v.
Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). 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, because the ALJ found that
Petitioner is able to perform his past relevant work as a
clinical counselor, the ALJ did not consider whether there
are other jobs that exist in significant numbers in the
national economy that Petitioner can perform. Based on the
finding that Petitioner could engage in past relevant work,
the ALJ ultimately concluded that Petitioner “has not
been under a disability, as defined in the Social Security
Act, from December 13, 2011, through the date of this
decision.” (AR 27).