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Carew v. Commissioner of Social Security

United States District Court, D. Idaho

September 23, 2019

NICOLE CAREW, Petitioner,


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

         Pending before the Court is Petitioner Nicole Carew’s Petition for Review (Dkt. 1), seeking review of the Social Security Administration’s decision denying her application for Supplemental Security Income disability benefits for lack of disability. See generally 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:


         On April 7, 2016, Petitioner Nicole Carew (“Petitioner”) protectively filed an application for Supplemental Security Income disability benefits, alleging disability beginning August 4, 1994 (later amended to April 7, 2016). This claim was initially denied on July 27, 2016 and, again, on reconsideration on November 2, 2016. On December 21, 2016, Petitioner timely filed a Request for Hearing. On December 19, 2017, Administrative Law Judge (ALJ) David Willis held a hearing in Boise, Idaho, at which time Petitioner, represented by attorney Barbara Harper, appeared and testified. Impartial vocational expert Sara Statz also appeared and testified.

         On March 9, 2018, the ALJ issued a Decision denying Petitioner’s claims, finding that she was not disabled within the meaning of the Social Security Act. Petitioner timely requested review from the Appeals Council and, on June 12, 2018, the Appeals Council denied Petitioner’s Request for Review, making final the ALJ’s Decision.

         Having exhausted her administrative remedies, Petitioner timely filed the instant action, arguing generally that the ALJ’s Decision was not in accordance with the law or the evidence, and that Petitioner is disabled from performing substantial gainful activity. See Pet. For Review, p. 2 (Dkt. 1). In particular, Petitioner claims that the ALJ erred when he (1) determined that she does not meet Listing 12.04, 12.06, 12.08, 12.11, and 12.15; (2) determined that Petitioner’s credibility was not consistent with the record without providing clear and convincing reasons supported by substantial evidence; and (3) assigned an RFC which was not supported by the record. See Pet.’s Brief, pp. 10-19 (Dkt. 13). Petitioner therefore requests that the Court either reverse the ALJ’s Decision and find that she is entitled to Supplemental Security Income disability benefits or, alternatively, remand the case for further proceedings and award attorneys’ fees. See id. at p. 20; see also Pet. for Review, p. 2 (Dkt. 1).


         To be upheld, the Commissioner’s decision must be supported by substantial evidence and based on proper legal standards. See 42 U.S.C. § 405(g); Matney ex. rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). Findings as to any question of fact, if supported by substantial evidence, are conclusive. See 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 Hall v. Sec’y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).

         “Substantial evidence” is such relevant evidence as a reasonable mind might accept as adequate to support an ALJ’s finding/conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less than a preponderance (see Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)), and “does not mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).

         As to questions of fact, the Court’s role is to review the record as a whole to determine whether it contains evidence allowing a reasonable mind to accept the conclusions reached by the ALJ. See Richardson, 402 U.S. at 401. The ALJ is responsible for determining credibility and resolving conflicts within the medical testimony (see Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving any ambiguities (see Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)), and drawing inferences logically flowing from the evidence contained in the record (see Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). Where the evidence is susceptible to more than one rational interpretation, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. See Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).

         As to questions of law, the ALJ’s decision must be based on proper legal standards and will be reversed for legal error. See Matney, 981 F.2d at 1019. At the same time, the ALJ’s construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See id. 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.” See Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).


         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 (see 20 C.F.R. §§ 404.1520, 416.920) – or continues to be disabled (see 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”). See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is defined as work activity that is both substantial and gainful. “Substantial work activity” is work activity that involves doing significant physical or mental activities. See 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. See 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless of how severe her physical/mental impairments are and regardless of her age, education, and work experience. See 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 April 7, 2016, the application date.” (AR 12).

         The second step requires a determination of whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. See 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” if it significantly limits an individual’s 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 establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual’s ability to work. See 20 C.F.R. §§ 404.1521, 416.921. If there is no severe medically determinable impairment or combination of impairments, benefits are denied. See 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner has the following severe impairments: “bipolar II and depressive disorder, anxiety disorder, attention deficit hyperactivity disorder (ADHD), and borderline personality disorder.” See (AR 12) (explaining that “[t]hese impairments limit the claimant’s abilities to do basic work-related activities, and are more than slight abnormalities with limited effects . . . .”).

         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. See 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. See 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor equal one of the listed impairments, the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. See id. Here, the ALJ concluded that Petitioner’s above-listed impairments, while severe, do not meet or medically equal, either singly or in combination, the criteria established for any of the qualifying impairments. See (AR 12-13).

         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. See 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. See 20 C.F.R. §§ 404.1545, 416.945. On this point, the ALJ concluded:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: she can perform simple, routine, repetitive tasks but not at a production rate. She is limited to simple work-related decisions in utilizing judgment or dealing with changes in the work setting. She can interact and respond appropriately to supervisors occasionally. She can also interact and respond appropriately to coworkers and the public occasionally. With coworkers, the contact can only be incidental throughout the workday but with no teamwork activities. Public contact could be incidental (not a required part of the job). The claimant would be off task 10% of the 8-hour workday and would be absent from work 1 day per month.

(AR 14).

         In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of her impairments, the burden shifts to the Commissioner to show that the claimant retains the ability to do alternate work and to demonstrate that such alternate work exists in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). Here, the ALJ found that Petitioner has no past relevant work but that, considering her age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that she can perform, including sweeper/cleaner (industrial), document preparer/microfilming, and marker. See (AR 18-19). Therefore, the ALJ concluded that Petitioner “has not been under a disability, as defined by the Social Security Act, since April 7, 2016, the date the application was filed.” (AR 20).

         B. Analysis

         1. The ALJ Did Not Err in Evaluating Whether the Severity of Petitioner’s Impairments Meet or Medically Equal a Listed Impairment

         As discussed above, an ALJ must evaluate a claimant’s impairments to see if they meet or equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 404.1520(d); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). An impairment meets a listed impairment “only when it manifests the specific findings described in the set of medical criteria for that impairment.” See SSR 83-19; see also 20 C.F.R. § 404.1525; Tackett, 190 F.3d at 1099 (impairment meets or equals listed impairment only if medical findings (defined as set of symptoms, signs, and laboratory findings) are at least equivalent in severity to set of medical findings for listed impairment). “An ALJ must evaluate the relevant evidence before concluding that a claimant’s impairments do not meet or equal a listed impairment. A boilerplate finding is insufficient to support a conclusion that a claimant’s impairment does not do so.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). However, the ALJ is not required to state why a claimant fails to satisfy every criteria of the Listing if they adequately summarize and evaluate the evidence. See Gonzalez v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir. 1990); Lewis, 236 F.3d at 512.

         Here, Petitioner argues that the ALJ erred in determining that her impairments do not meeting Listing 12.04 (depressive, bipolar and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), 12.08 (personality and impulse-control disorders), 12.11 (neurodevelopmental disorders), and 12.15 (trauma-and stressor-related disorders) – specifically Paragraph B of these Listings. See Pet.’s Brief, pp. 11 (Dkt. 13) (“It is Petitioner’s position that the ALJ erred at step three of this sequential process by failing to properly consider whether Petitioner’s mental limitations met or equaled Listing 12.04, 12.06, 12.08, 12.11, or 12.15 when he failed to properly analyze Paragraph B of these listings.”).

         Each Listing requires that, in addition to other criteria (the Paragraph A criteria), Petitioner establish the she has:

         B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning . . . .:

1. Understand, remember, or apply information . . . .
2. Interact with others . . . .
3. Concentrate, persist, or maintain pace ...

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