United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
E. Bush, Chief U.S. Magistrate Judge
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:
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.
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.
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).
STANDARD OF REVIEW
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).
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).
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).
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.
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.
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).
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 . . . .”).
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).
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
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
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
The ALJ Did Not Err in Evaluating Whether the Severity of
Petitioner’s Impairments Meet or Medically Equal a
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
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
Listing requires that, in addition to other criteria (the
Paragraph A criteria), Petitioner establish the she has:
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 ...