United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
E. Bush Chief U.S. Magistrate Judge
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
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
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.
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
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,
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. 1987).
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,
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).
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 . .
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).
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.
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.
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),  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
The ALJ Reasonably Accounted for Dr. LeBeau's
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
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
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
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