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Pierce v. Saul

United States District Court, D. Idaho

September 26, 2019

RUSTY PIERCE, Petitioner,
v.
ANDREW SAUL, Commissioner of Social Security, Respondent.

          MEMORANDUM DECISION AND ORDER

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

         Pending is Petitioner Rusty Pierce’s Petition for Review[1] (Dkt. 1), appealing the Social Security Administration’s final decision finding him not disabled and denying his 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.

         I. ADMINISTRATIVE PROCEEDINGS

         On October 30, 2012, Petitioner Rusty C. Pierce protectively applied for Title II disability and disability insurance benefits. (AR 191.) He alleged disability beginning June 1, 2010. (Id.) His claim was denied initially on February 1, 2013 (AR 209) and then again on reconsideration on April 9, 2013. (AR 244.) On April 19, 2013, Petitioner timely filed a Request for Hearing before an Administrative Law Judge (“ALJ”). (AR 231.) Petitioner appeared and testified at a video hearing held on March 19, 2014 before ALJ Barry Robinson while Petitioner was in Boise, Idaho and ALJ Robinson was in Albuquerque, New Mexico. (AR 191.) Impartial vocational expert Polly A. Peterson also appeared and testified at the hearing. (Id.)

         On May 23, 2014, ALJ Robinson issued a Decision denying Petitioner’s claim, finding that he was not disabled within the meaning of the Social Security Act. (AR 198.) Petitioner requested review from the Appeals Council and on March 25, 2016 the Appeal Council granted Petitioner’s request for review and remanded his case to an ALJ for further development of the record. (AR 205–207.) Petitioner appeared and testified at two live hearings on July 13, 2016 and October 17, 2016 before ALJ Stephen Marchioro[2] in Boise, Idaho. (AR 10.) Impartial medical expert Dr. John Kwock and impartial vocational expert Jerry Gravatt also appeared and testified. (Id.)

         On January 11, 2017, the ALJ issued a decision denying Petitioner’s claim, finding that he was not disabled within the meaning of the Social Security Act. (AR 22.) Petitioner again requested review from the Appeals Council, on March 3, 2017. (AR 391.) On July 7, 2017, the Appeals Council denied Petitioner’s Request for Review, making the ALJ decision the final decision of the Commissioner of Social Security. (AR 1.)

         Petitioner’s administrative remedies having been exhausted, he timely filed the instant action, arguing that “[t]he decision denying Petitioner’s claim is not in accordance with the purpose and intent of the Social Security Act, nor is it in accordance with the law, nor is it in accordance with the evidence, but contrary thereto and to the facts and against the evidence, in that Petitioner is disabled from performing substantial gainful activity.” Pet. for Review 2 (Dkt. 1). Petitioner contends the ALJ erred by (1) failing to evaluate the opinions of his treating providers, as required by the Appeals Council’s order of remand; (2) failing to assess an RFC supported by substantial evidence; and (3) failing to provide clear and convincing evidence when determining that Petitioner’s allegations of pain and other symptoms were not consistent with the evidence of record. See generally Pet’r’s Mem. ISO Pet. for Review (Dkt. 12). Petitioner asks for a holding that he is disabled and for a remand for an immediate award of benefits. Id. at 20.

         II. STANDARD OF REVIEW

         To be 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).

         “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); 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).

         With 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 Cir. 2004).

         With 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).

         III. DISCUSSION

         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 (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.

         The 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 his 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 his alleged onset date of June 1, 2010 through his date last insured of September 30, 2014. (AR 13.)

         The 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” if it does not significantly limit the claimant’s physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1522, 416.922. 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, through the date last insured, Petitioner had the following severe impairments: “obesity, left shoulder degenerative joint disease, left knee degenerative joint disease status-post arthroscopic surgeries and total knee arthroplasty, lumbar degenerative disc disease, and left carpal tunnel syndrome.” (AR 13.)

         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. 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, his 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 13–16.)

         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. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s RFC is his ability to do physical and mental work activities on a sustained basis despite limitations from his impairments. 20 C.F.R. §§ 404.1545, 416.945. An individual’s past relevant work is work he 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 lasted long enough for the claimant to learn to do the job. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner had the residual functional capacity:

to perform sedentary work as defined in 20 CFR 404.1567(a) except he could frequently push and/or pull with his non-dominant left upper extremity. He could occasionally operate foot controls with his left lower extremity. He could never climb ladders, ropes, or scaffolds. He could frequently balance. He could occasionally stoop and climb ramps or stairs. He could never crouch or crawl. He could frequently reach with his left upper extremity, but only occasionally reach overhead and frequently handle with his left upper extremity. He had to avoid all exposure to unprotected heights and unguarded, moving mechanical parts. He could tolerate occasional exposure to vibration.

(AR 16.) The ALJ further found that Petitioner was unable to perform any of his past relevant work through his date last insured. (AR 20.)

         In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of his 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. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). If the claimant can do such other work, he is not disabled; if the claimant is not able to do other work and meets the duration requirement, he is disabled. Here, the ALJ found that Petitioner’s RFC is compatible with work as a “surveillance systems monitor, ” “call out operator, ” or “counter clerk.” (AR 21.) The ALJ further found that these jobs exist in significant numbers in the national economy. (AR 21.)

         Based on the finding that Petitioner could perform jobs that exist in significant numbers in the national economy, the ALJ ultimately concluded that Petitioner “was not under a disability, as defined in the Social Security Act, at any time from June 1, 2010, the alleged onset date, through September 30, 2014, the date last insured.” (AR 21.)

         B. Analysis

         Petitioner raises three issues with the ALJ’s decision. First, he argues the ALJ erred by failing to evaluate the opinions of his treating providers. Second, he argues the ALJ failed to provide clear and convincing reasons for determining that his allegations of pain and other symptoms were not consistent with the evidence in the record. Third, he argues the ALJ erred when ...


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