United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Candy W. Dale United States Magistrate Judge.
pending before the Court for its consideration is Petitioner
Donna Marie McGonigal's Petition for Review of the
Respondent's denial of social security benefits. (Dkt.
1.) The Court has reviewed the Petition for Review, the
Answer, and the administrative record (AR), and for the
reasons that follow, will remand to the Commissioner.
AND FACTUAL HISTORY
filed an application for Disability Insurance Benefits and
Supplemental Security Income on June 12, 2013, alleging
disability beginning on June 30, 2001. This application was
denied initially and on reconsideration, and a hearing was
held on October 9, 2015, before Administrative Law Judge
(ALJ) Richard A. Opp. After hearing testimony from Petitioner
and an impartial vocational expert, ALJ Opp issued a decision
on December 18, 2015, finding Petitioner not disabled.
Petitioner timely requested review by the Appeals Council,
which denied her request for review on May 30, 2017.
appealed this final decision to the Court. The Court has
jurisdiction to review the ALJ's decision pursuant to 42
U.S.C. § 405(g).
time of the hearing, Petitioner was 39 years of age. She has
a ninth-grade education. Petitioner's prior work
experience includes a long history of part-time work as a
newspaper and magazine distributor and as a coin operator
with Idaho State Publishing. Petitioner alleged disability
due to anxiety disorder, Crohn's disease, Barrett's
esophagus, irritable bowel syndrome, arthritis, and
Commissioner follows a five-step sequential evaluation for
determining whether a claimant is disabled. See 20
C.F.R. §§ 404.1520, 416.920. At step one, it must
be determined whether the claimant is presently engaged in
substantial gainful activity. The ALJ determined Petitioner
did engage in substantial gainful activity after her alleged
onset date of June 30, 2001. However, the ALJ found that the
period of substantial gainful activity was limited, having
occurred from January 1, 2013, to June 14, 2013. Prior to
2013, and after June 14, 2013, Petitioner's earnings were
below the SGA level. Accordingly, the ALJ proceeded to
consider the remaining steps in the sequential process.
See 20 C.F.R. § 404.1520(b); Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (step one
asks whether the claimant is “presently working in a
substantial gainful activity”).
two, it must be determined whether the claimant suffers from
a severe impairment. The ALJ found Petitioner's colitis,
depressive disorder, and panic disorder to be severe
impairments within the meaning of the regulations. (AR 17.)
The ALJ determined that Petitioner's arthritis and lumbar
pain were not medically determinable impairments and thus
were not severe. (AR 18.) The ALJ did not address the
severity of Petitioner's Barrett's esophagus, despite
mentioning that the record reflected a long history of
treatment for various gastrointestinal conditions, including
Barrett's esophagus. (AR 17-18.)
three asks whether a claimant's impairments meet or equal
a listed impairment. The ALJ found that Petitioner's
impairments did not meet or equal the criteria for the listed
impairments, specifically considering listings 12.04
(depressive, bipolar and related disorders) and 12.06
(anxiety and obsessive-compulsive disorders). (AR
claimant's impairments do not meet or equal a listing,
the Commissioner must assess the claimant's residual
functional capacity (RFC) and determine, at step four,
whether the claimant has demonstrated an inability to perform
past relevant work. When assessing Petitioner's RFC, the
ALJ determines whether Petitioner's complaints about the
intensity, persistence, and limiting effects of her pain are
the ALJ found Petitioner's complaints not entirely
consistent with the medical evidence and other evidence in
the record. The ALJ determined Petitioner retained the RFC to
perform light work with restrictions against climbing of
ladders, ropes and scaffolds. (AR 19.) The ALJ limited
Petitioner to positions having no contact with the public and
occasional interpersonal contact with coworkers and
found Petitioner was able to lift and carry twenty pounds
occasionally and ten pounds frequently, and she could stand
or walk for up to six hours, and sit up to six hours during
an eight-hour workday with normal breaks. Id.
Additionally, the ALJ found Petitioner was able to push or
pull with her upper extremities, occasionally operate foot
controls, work on ramps and stairs, and frequently balance,
stoop, kneel, crouch, crawl, reach, handle, finger, and feel.
Id. Finally, the ALJ determined that Petitioner
could concentrate and attend to tasks for an eight-hour
workday with normal breaks while preforming short and simple
found Petitioner was not able to perform her past relevant
work as magazine and newspaper distributor or coin machine
collector. (AR 26.) Thus, at step five, the burden shifted to
the Commissioner to demonstrate that the claimant retained
the capacity to make an adjustment to other work that exists
in significant levels in the national economy, after
considering the claimant's residual functional capacity,
age, education and work experience. Here, the ALJ found that
Petitioner retained the ability to perform the requirements
of certain light work occupations such as housekeeping
cleaner, garment folder, and gluer. (AR 27.) Consequently,
the ALJ determined Petitioner was not disabled. Id.
bears the burden of showing that disability benefits are
proper because of the inability “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has
lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); see also 42 U.S.C. §
1382c(a)(3)(A); Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971). An individual will be determined to be
disabled only if her physical or mental impairments are of
such severity that she not only cannot do her previous work
but is unable, considering her age, education, and work
experience, to engage in any other kind of substantial
gainful work which exists in the national economy. 42 U.S.C.
review, the Court is instructed to uphold the decision of the
Commissioner if the decision is supported by substantial
evidence and is not the product of legal error. 42 U.S.C.
§ 405(g); Universal Camera Corp. v. Nat'l Labor
Relations Bd., 340 U.S. 474 (1951); Meanel v.
Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended);
DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir.
1991). 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). It is more than a scintilla but less than a
preponderance, Jamerson v Chater, 112 F.3d 1064,
1066 (9th Cir. 1997), and “does not mean a large or
considerable amount of evidence, ” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).
Court cannot disturb the Commissioner's findings if they
are supported by substantial evidence, even though other
evidence may exist that supports the petitioner's claims.
42 U.S.C. § 405(g); Flaten v. Sec'y of Health
& Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).
Thus, findings of the Commissioner as to any fact, if
supported by substantial evidence, will be conclusive.
Flaten, 44 F.3d at 1457. It is well-settled that, if
there is substantial evidence to support the decision of the
Commissioner, the decision must be upheld even when the
evidence can reasonably support either affirming or reversing