United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Ronald E. Bush, Chief U.S. Magistrate Judge.
is Petitioner Marilyn Bewick's Petition for
Review (Dkt. 1), appealing the Social Security
Administration's final decision finding her not disabled
and denying her claim for disability insurance benefits.
See Pet. for Review (Dkt. 1). This action is brought
pursuant to 42 U.S.C. § 405(g). Having carefully
considered the record and otherwise being fully advised, the
Court enters the following Memorandum Decision and Order.
August 16, 2013, Petitioner Marilyn Jewel Bewick
(“Petitioner”) protectively applied for Title II
disability and disability insurance benefits. (AR 29.)
Petitioner alleged disability beginning September 21, 2012.
(Id.) Her claim was denied initially on January 22,
2014 and then again on reconsideration on April 28, 2014.
(Id.) On May 14, 2014, Petitioner timely filed a
written request for hearing before an Administrative Law
Judge (“ALJ”). (Id.) Petitioner appeared
and testified at a hearing held on February 10, 2016 in
Spokane, Washington. (Id.) Impartial medical experts
John R. Morse, MD and Nancy Winfrey, PhD and impartial
vocational expert Jeffrey F. Tittelfitz also appeared and
testified at the hearing. (Id.)
March 9, 2016, ALJ Mark Kim issued a Decision denying
Petitioner's claim, finding that Petitioner was not
disabled within the meaning of the Social Security Act during
the period from her alleged onset date through the date of
the decision. (AR 38-39.) Petitioner timely requested review
from the Appeals Council on April 12, 2016. (AR 171.) On
August 15, 2017, the Appeals Council denied Petitioner's
Request for Review, making the ALJ decision the final
decision of the Commissioner of Social Security. (AR 5.)
exhausted her administrative remedies, Petitioner filed this
case. She contends 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 2 (Dkt. 1). Petitioner argues that the ALJ failed
to address her voice disorder, his findings are
contradictory, he did not meet the burden of proof, and he
failed to properly assign an RFC consistent with her mental
impairments. See generally Pet'r's MSJ (Dkt.
15). Petitioner asks for reversal and a finding that she is
disabled, or, in the alternative, that the case be remanded
for a further hearing. Pet. for Review 2 (Dkt. 1).
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 did not engage in substantial gainful
activity during the period from her alleged onset date of
September 21, 2012 through the date of the ALJ's
decision. (AR 31.)
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, as of the date of his decision, Petitioner had the
following severe impairments: “reactive airway disease,
asthma, laryngeal inflammation, obesity, depressive disorder,
post-traumatic stress disorder (PTSD), and neurocognitive
disorder.” (AR 31.)
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 found that Petitioner did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments. (AR 32-33.)
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 ...