United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Ronald E. Bush, Chief U.S. Magistrate Judge
is Petitioner Marjorie A. Sawyer's Petition for
Review (Dkt. 1), appealing the Social Security
Administration's final decision finding her not disabled
and denying her claims for disability insurance benefits and
supplemental security income. 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:
September 10, 2012, Marjorie A. Sawyer
(“Petitioner”) protectively applied for Title II
disability and disability insurance benefits, as well as for
Title XVI supplemental security income. (AR 13.) Petitioner
alleged disability beginning September 24, 2010. Id.
Her claims were denied initially on February 7, 2013 and then
again on reconsideration on April 23, 2013. Id. On
May 14, 2013, Petitioner timely filed a Request for Hearing
before an Administrative Law Judge (“ALJ”).
Id. On September 4, 2014, ALJ Jo Hoenninger held a
hearing in Kennewick, Washington during which Petitioner,
represented by attorney Cory J. Brandt,  appeared and
testified. Id. Impartial vocational expert Daniel R.
Mckinney, Sr. also appeared and testified at the hearing by
October 17, 2014, the ALJ issued a Decision denying
Petitioner's claim, concluding that Petitioner was not
disabled within the meaning of the Social Security Act. (AR
22.) Petitioner timely requested review from the Appeals
Council on or about October 24, 2014. (AR 9.) On April 27,
2016, the Appeals Council denied Petitioner's Request for
Review, making the ALJ's decision the final decision of
the Commissioner of Social Security. (AR 1.)
exhausted her administrative remedies, Petitioner timely
filed the instant action, arguing that “[t]he
conclusions and findings of fact of the [respondent] are not
supported by substantial evidence and are contrary to law and
regulation.” Pet. for Review 1 (Dkt. 1). All of
Petitioner's assignments of error relate to alleged
deficiencies in how the ALJ considered, or failed to
consider, the severity of Petitioner's hearing loss.
See generally Pet'r's Br. (Dkt. 17).
Petitioner asks the Court to reverse the ALJ's decision
or to remand for the SSA to hold a supplemental hearing.
Id. at 17.
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, 871 F.3d
664 (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 “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,
871 F.3d at 674), 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 her 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 September 24, 2010, the alleged onset date.
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 has the following severe impairments:
“mild cervical degenerative disc disease, left hear
[sic] hearing loss, and Crohn's disease.” (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, her 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 16.)
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 her ability to do physical and mental work activities
on a sustained basis despite limitations from her
impairments. 20 C.F.R. §§ 404.1545, 416.945. An
individual's past relevant work is work 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 perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), with the capacity to lift, carry, push and pull
20 pounds occasionally and 10 pounds frequently, stand and
walk 6 of 8 workday hours, and sit 6 of 8 workday hours. The
claimant is limited to frequent climbing of ramps and stairs,
and occasional climbing of ladders, ropes and scaffolds. The
claimant is limited to occasional crawling and frequent
balancing, stooping, kneeling and crouching. The claimant is
limited to occasional overhead lifting with the non-dominant
left upper extremity, and limited to frequent handling with
the non-dominant left upper extremity. The claimant should
not be exposed to loud industrial noise, and should avoid
concentrated exposure to vibration and hazards, such as
unprotected heights and exposed moving mechanical parts. The
claimant can occasionally use a telephone. The claimant needs
close access to a restroom and additionally needs a five
minute break every hour in lieu of regular breaks.
(AR 16.) She further found that Petitioner is able to perform
her past relevant work as a cashier, café manager, and