Landowske v. Berryhill

          MEMORANDUM DECISION AND ORDER

          Honorable Ronald E. Bush Chief U.S. Magistrate Judge

         Pending 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.^[1] 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:

         I. ADMINISTRATIVE PROCEEDINGS

         On 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.

         On 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.

         Having 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 22.

         II. STANDARD OF REVIEW

         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); 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).

         “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); 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).

         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. 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 Cir. 2004).

         With 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).

         II. DISCUSSION

         A. Sequential Process

         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 (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.

         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 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).

         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 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).

         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 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).

         The 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).

         In the 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).

         B. ...