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McGonigal v. Berryhill

United States District Court, D. Idaho

September 6, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Respondent.


          Honorable Candy W. Dale United States Magistrate Judge.


         Currently 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.


         Petitioner 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.

         Petitioner 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).

         At the 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 depression.


         The 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”).

         At step 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.)

         Step 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 18.)[1]

         If a 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 credible.

         Here, 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 supervisors. Id.

         The ALJ 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 instructions. Id.

         The ALJ 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.


         Petitioner 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. § 423(d)(2)(A).

         On 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).

         The 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 the ...

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