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Sawyer v. Berryhill

United States District Court, D. Idaho

December 27, 2017

MARJORIE ANNE SAWYER, Petitioner,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Respondent.

          MEMORANDUM DECISION AND ORDER

          Hon. Ronald E. Bush, Chief U.S. Magistrate Judge

         Pending is Petitioner Marjorie A. Sawyer's Petition for Review[1] (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.[2] 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 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, [3] appeared and testified. Id. Impartial vocational expert Daniel R. Mckinney, Sr. also appeared and testified at the hearing by telephone. Id.

         On 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.)

         Having 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.

         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, 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).

         “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); 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).

         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).

         III. 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 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. (AR 15.)

         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 has the following severe impairments: “mild cervical degenerative disc disease, left hear [sic] hearing loss, and Crohn's disease.” (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, 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.)

         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 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 ...


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