Abbott v. Commissioner of Social Security

          MEMORANDUM DECISION AND ORDER

          Ronald E. Bush Chief U.S. Magistrate Judge

         Pending before the Court is Petitioner Caryl Lynn Abbott's Petition for Review (Dkt. 1), seeking review of the Social Security Administration's decision denying her application for Social Security Disability Benefits for lack of disability. 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 March 9, 2016, Petitioner Caryl Lynn Abbott (“Petitioner”) protectively filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning February 14, 2016. This claim was initially denied on August 5, 2016 and, again, on reconsideration on November 29, 2016. On December 22, 2016, Petitioner timely filed a Request for Hearing. On November 8, 2017, Administrative Law Judge (“ALJ”) Marie Palachuk held a hearing in Spokane, Washington, at which time Petitioner, represented by attorney Mark B. Jones, appeared and testified. Also appearing and testifying were (1) Jack LeBeau, M.D., an impartial medical expert, and (2) Daniel R. McKinney Sr., an impartial vocational expert.

         On December 5, 2017, 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 March 9, 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 “[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, p. 2 (Dkt. 1). Specifically, Petitioner claims that (1) “the ALJ mis-stated what the medical expert said, then adopted it as her own”; (2) the ALJ erred in deciding that she did not meet or equal Listing 1.04A; and (3) “the ALJ's light [residual functional capacity] is not supported by substantial evidence.” Pet.'s Brief, pp. 8-13 (Dkt. 15). Petitioner therefore requests that the Court either reverse the ALJ's Decision and find that she is entitled to disability benefits or, alternatively, remand the case for further proceedings and award attorneys' fees. See id. at p. 14; see also Pet. for Review, p. 2 (Dkt. 1).

         II. STANDARD OF REVIEW

         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).

         III. DISCUSSION

         A. Sequential Process

         In evaluating the evidence presented at an administrative hearing, the ALJ must follow a five-step 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. See Heckler v. Campbell, 461 U.S. 458, 460-62 (1983).

         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(b). 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). “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). 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. 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 the alleged onset date.” (AR 13).

         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(c). An impairment or combination of impairments is “severe” if it significantly limits an individual's ability to perform basic work activities. 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; see also Social Security Rulings (“SSRs”) 85-28, and 16-3p. If there is no severe medically determinable impairment or combination of impairments, benefits are denied. Here, the ALJ found that Petitioner has the following severe impairments: “obesity; degenerative disc disease of the cervical and lumbar spine; occipital lobe stroke; hypertension; acute respiratory failure; multi-joint osteoarthritis; [and] diabetes mellitus with neuropathy.” (AR 13) (“[T]hese impairments constitute more than slight abnormalities and have more than a minimal effect on the claimant's ability to perform basic work activities . . .”).

         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(d), 404.1525, 404.1526. If the answer is yes, the claimant is considered disabled under the Social Security Act and benefits are awarded. See 20 C.F.R. § 404.1509. 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. 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 16-17).

         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(e). An individual's RFC is her ability to do physical and mental work activities on a sustained basis despite limitations from her impairments. In making this finding, the ALJ must consider all of the claimant's impairments, including impairments that are not severe. See 20 C.F.R. § 404.1520(e), 404.1545; see also SSR 96-8p.

         On this point, the ALJ concluded:

After careful consideration of the entire record, the undersigned finds that since February 14, 2016, the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). The claimant could stand and walk up to one hour at a time (three hours per day), and requires the ability to alternate between sitting and standing every 60 minutes. The claimant can frequently push and pull bilaterally. The claimant can never climb ladders, ropes, or scaffolds, and can occasionally perform all other postural activities. The claimant is limited to occasional bilateral overhead reaching, and frequent reaching in all other directions. The claimant must avoid concentrated exposure to extreme cold, industrial vibration, and hazards. The claimant could be exposed to no more than heavy traffic level noise without ear protection.

(AR 17).

         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. §§ 404.1512(f), 404.1560(c); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). Here, the ALJ found that Petitioner has been unable to perform any past relevant work but that, considering her age (at least prior to September 6, 2017), ^[1] education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that she can perform, including product assembler, electronics worker, and mail clerk. See (AR 20-22). Therefore, the ALJ concluded that Petitioner “was not disabled prior to September 6, 2017, but became disabled on that date and has continued to be disabled through the date of this decision.” (AR 22).

         B. Analysis

         1. The ALJ Reasonably Accounted for Dr. LeBeau's Opinions

         At the November 8, 2017 hearing, Dr. LeBeau testified that a person with Petitioner's limitations is capable of (1) sitting two hours at a time, for a total of six hours; (2) standing one hour at a time, for a total of three hours; and (3) walking for half-an-hour, for a total of two hours. See (AR 47). The ALJ assigned Dr. LeBeau's opinions “great weight, ” in turn utilizing them to “form[ ] the basis for the residual functional capacity assigned” - in particular, that Petitioner's RFC allows her to perform light work. (AR 19).^[2]

         Petitioner argues that, based upon Dr. LeBeau's testimony, she is only capable of sedentary work, not light work. See Pet.'s Brief, pp. 8-9 (Dkt. 15) (“An individual who can stand and walk five hours of an 8-hour day cannot perform ‘light work' by definition. Petitioner must be able to stand/walk six (6) hours of an eight-hour day by the very definition of ‘light work.'”). Petitioner premises her argument on SSR 83-10, which indeed specifies that, “[s]ince frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour day.” SSR 83-10, available at 1983 WL 31251 (emphasis added); see also 20 C.F.R. § 416.967(b) (“The full range of light work requires standing and walking, off and on, for a total of approximately 6 hours of an 8-hour workday.”) (emphasis added).

         Petitioner's reliance on SSR 83-10 does not fully describe the regulation. SSR 83-10 does not require six hours of standing and/or walking for all jobs classified as light work; it merely describes the activities that would be required of a person able to perform the full range of light work. In contrast, the ALJ in this case explicitly found that Petitioner's limitations, including the standing and walking limitations, did not allow her to perform the full range of light work that is set forth in SSR 83-10. See (AR 17-20); see also Polley v. Comm'r of Soc. Sec. Admin., 173 F.3d 861, at *1 (1999) (rejecting argument that sit/stand option precludes finding of light work); Ortiz v. Colvin, 2014 WL 7149544, at *4 (C.D. Cal. 2014) (same); Boster v. Comm'r Soc. Sec. Admin., 2008 WL 754275, at *4 (D. Idaho 2008) (“[T]here will be instances where a claimant's residual functional capacity will not fit precisely within one of the exertional categories of work.”); SSR 00-4P, available at 2000 WL 1898704, at *3 (“The DOT [(Dictionary of Occupational ...