RONALD E. BUSH, Magistrate Judge.
Pending before this Court is Jeffrey Joseph Ennis's Petition for Review (Docket No. 1), seeking review of the Social Security Administration's ("SSA") final decision to deny his claim for Social Security Disability Benefits for lack of disability. The action is brought pursuant to 42 U.S.C. § 405(g). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
On July 1, 2011, Jeffrey Joseph Ennis ("Petitioner") filed a Title II application for a period of disability and disability insurance benefits. Petitioner alleged disability beginning March 19, 2009. This claim were initially denied on September 8, 2011 and, again, on reconsideration on November 3, 2011. On or around November 10, 2011, Petitioner timely filed a Request for Hearing before an Administrative Law Judge ("ALJ"). On May 16, 2013, ALJ Gene Duncan held a video hearing in Tacoma, Washington, at which time, Petitioner, represented by attorney Mark B. Jones, appeared and testified. Impartial medical expert, William A. Rack, M.D., and impartial vocational expert, Patricia B. Ayerza, also appeared and testified during the same May 16, 2013 hearing.
On May 31, 2013, the ALJ issued a Decision denying Petitioner's claims, finding that Petitioner was not disabled within the meaning of the Social Security Act. Petitioner timely requested review from the Appeals Council on June 24, 2013. On June 20, 2014, the Appeals Council denied Petitioner's Request for Review, making the ALJ's decision the final decision of the Commissioner of Social Security.
Having exhausted his administrative remedies, Petitioner timely files the instant action, arguing that "[t]he conclusions and findings of fact of the defendant are not supported by substantial evidence and are contrary to law and regulation." Compl., p. 2 (Docket No. 1). In this regard, Petitioner makes a multitude of related arguments, including: (1) the ALJ had a duty to address an earlier hearing in the Decision; (2) the Decision incorrectly stated Dr. Rack's testimony at the hearing; and (3) the ALJ improperly gave no weight to Petitioner's orthopedist, Dr. Michael D. DiBenedetto. See generally Pet.'s Brief, pp. 6-15 (Docket No. 16). Petitioner therefore requests that the Court reverse the ALJ's May 31, 2013 Decision or remand the action for a further proceedings. Compare id. at pp. 15-17 (insisting that reversal "is not only the best resolution, but the only fair way to resolve this matter for Petitioner"), with Compl., p. 2 (Docket No. 1) (requesting that Court "[r]emand the case for a further hearing").
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); 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. 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. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
"Substantial evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 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).
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. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019. The ALJ is responsible for determining credibility and resolving conflicts in medical testimony (see Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving 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 (see Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). Where the evidence is susceptible to more than one rational interpretation in a disability proceeding, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
With respect to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. Matney, 981 F.2d at 1019. 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." Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
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"). 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. 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 has engaged in SGA, disability benefits are denied, regardless of how severe his physical/mental impairments are and regardless of his 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 has not engaged in substantial gainful activity since March 19, 2009, the alleged disability onset date. (AR 14).
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 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. 20 C.F.R. §§ 404.1521, 416.921. 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 Petitioner had the following severe impairments: (1) "right thumb ligament repair with some instability"; (2) "post right carpal tunnel release numbness in right middle finger and index finger tip numbness"; and (3) "arthropathy at L4-L5 and L5-S1 and anterolisthesis results in a low back pain syndrome." (AR 14).
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 one of the listed impairments, the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. 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. (AR 15).
The fourth step of the evaluation process requires the ALJ to determine whether the claimant's residual functional capacity 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 residual functional capacity 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. Likewise, an individual's past relevant work is work performed within the last 15 years or 15 years prior to the date that disability must be established; also, the work must have lasted long enough for the claimant to learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner has the residual functional capacity to perform light work as follows: (1) "[h]e can lift and/or carry 20 pounds occasionally and 10 pounds frequently in an eight-hour workday"; (2) "[h]e can stand and/or walk for four hours and sit for six hours in an eight-hour workday"; (3) "[h]e can occasionally perform postural movements"; (4) "[h]e cannot climb ladders"; (5) "[h]e cannot work at heights or near hazards"; (5) "[h]e cannot work with heavy or vibrating equipment"; (6) "[h]e cannot work with power tools"; (7) "[h]e cannot intensely twist his upper body"; (8) "[h]e can frequently reach, grip, handle, and fine finger with his right upper extremity"; (9) "[h]e can have moderate interaction with the general public;" (10) "[h]e is off task 5% of the workday"; (11) "[h]e cannot have former inmates as co-workers"; (12) "[h]e must have his own space or job area"; and (13) "[h]e needs a sit/stand option at work." (AR 15-20).
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 Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do 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 cannot perform his past relevant work as a jailer commander or data entry operator due to the above-referenced residual functional capacity. (AR 20). Still, considering Petitioner's age, education, work experience, and residual functional capacity, the ALJ found that he had "acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy," including information clerk, police aide, case aide, bailiff, and police records clerk. (AR 21-22).
Petitioner's briefing takes the form of a recitation of various facts in the record, followed by arguments that are largely unaccompanied by any legal authority. Regardless, Petitioner makes three distinct arguments to this Court — first, the ALJ had a duty to discuss the earlier, December 14, 2012 hearing (not just the May 16, 2013 hearing), in the May 31, 2013 Decision; second, the Decision incorrectly stated Dr. Rack's testimony at the May 16, 2013 hearing; and third, the ALJ improperly gave no weight to Petitioner's orthopedist. See generally Pet.'s Brief, pp. 6-15 (Docket No. 16). Each of these arguments is addressed below.
The May 31, 2013 Decision makes reference only to the May 16, 2013 video hearing; there is no mention of the December 14, 2012 hearing. See generally (AR 12-22). According to Petitioner, "the ALJ had a duty to discuss the first hearing in the Decision" because "this testimony was quite favorable for the Petitioner." Pet.'s Brief, pp. 6-7 (Docket No. 16); see also Pet.'s Resp. Brief, p. 1 (Docket No. 18) ("Evidence was obtained from a vocational expert at this first hearing which was material to the decision-making process, and which was favorable to the claimant."). The undersigned disagrees.
Petitioner accurately points out that, at times, the exchange between the ALJ and the impartial vocational expert during the December 14, 2012 hearing, Jinnie Lawson, was "rather confusing." Id. at p. 6. However, any confusion is immaterial when understanding that the ALJ ultimately adopted Ms. Lawson's testimony concerning Petitioner's ability to perform his past relevant work. On this issue, Ms. Lawson testified:
(AR 60-66) (emphasis added).
Despite what could be perceived as a disconnected back-and-forth between the ALJ and Ms. Lawson over the meaning of "frequent" vis à vis the reaching and handling requirements for a chief jailer, the ultimate take-a-way from her testimony is nonetheless clear: Petitioner cannot perform his past relevant work. But the ALJ never disputed this, concluding in no uncertain terms that Petitioner "is unable to perform any past relevant work." (AR 20). Said another way, any incorporation of Ms. Lawson's December 14, 2012 testimony would have buttressed, rather than detracted from, the Decision's legal conclusions on this issue. Therefore, any failure to so include such a discussion does not ipso facto render the Decision as lacking in substantial evidence.
Petitioner appears to make three interrelated arguments concerning the Decision's references to Dr. Rack's testimony at the May 16, 2013 hearing: (1) the Decision's paraphrasing of Dr. Rack's testimony concerning Petitioner's impairments was not consistent with Dr. Rack's actual testimony; (2) the Decision claimed that Dr. Rack testified that Petitioner's impairments do not meet or medically equal a listed impairment when, in fact, he made no such opinion;
The Decision references Dr. Rack three different times — first, when he is introduced as the impartial medical expert who testified at the May 16, 2013 hearing; second, when he is referenced in a single sentence as testifying that Petitioner's impairments do not meet or medically equal a listed impairment at step three of the sequential process; and third, when his testimony about Petitioner's two severe impairments is discussed. (AR 12, 15, & 18). Petitioner's first critique of the ALJ's handling of Dr. Rack's testimony speaks to the third of these three instances.
The ALJ paraphrased Dr. Rack's testimony as follows:
(AR 18). To the extent Petitioner now claims that this specific characterization of Dr. Rack's testimony is somehow incorrect, the undersigned disagrees.
At the May 16, 2013 hearing, Dr. Rack testified in relevant part:
(AR 499-501) (emphasis added). This testimony directly aligns with how the ALJ accounted for Dr. Rack's opinions within the Decision. In short, the Decision properly paraphrased Dr. Rack's overall testimony. But see infra (discussing separate issue of Dr. Rack's testimony as to whether Petitioner's severe impairments met or equaled a listed impairment).
Petitioner's second critique of the ALJ's handling of Dr. Rack's testimony turns on the Decision's second reference to Dr. Rack (see supra (discussing Decision's three references to Dr. Rack))) — namely, that Dr. Rack "testified that the claimant's impairments do not meet or medically equal any listings." (AR 15). Petitioner claims that this statement "is simply untrue," before highlighting Dr. Rack's responses to Petitioner's counsel's follow-up questions on the subject. Pet.'s Brief, p. 11 (Docket No. 16). On this point, Dr. Rack testified:
(AR 502-503).
Combined with his earlier testimony in response to questions from the ALJ (see supra), what becomes more apparent to the undersigned is that, while Dr. Rack may have subjectively believed that Petitioner's severe impairments
But even if one were to construe this arguable anomaly as a bona fide shortcoming of the Decision, it must be tempered against the fact that the ALJ did not rely solely upon Dr. Rack's testimony in finding that Petitioner's severe impairments do not meet or equal a listed impairment. Indeed, the Decision immediately went on to say:
(AR 15) (citing (AR 197-198 & 396)). Hence, against the fuller backdrop of the ALJ's explanation for his ruling, any arguable mischaracterizing of Dr. Rack's testimony in this limited respect is harmless because other evidence in the record (or lack of evidence as the case may be) supports the ALJ's conclusions. See Molina v. Astrue, 674 F.3d 1104, 1115 (9
Although the Court is sympathetic to the fact that Petitioner has severe impairments that impact his physical abilities, the record evidence does not show that he meets or medically equals the requirements of any particular listing. A mention of the potential discrepancy in Dr. Rack's testimony is not enough to show how any such error correspondingly undermines the ALJ's disability determination generally, or whether Petitioner has a listed impairment specifically. See Tackett v. Apfel, 180 F.3d 1094, 1099 (9
In rounding out the gist of Dr. Rack's opinions (to complete the ALJ's above-quoted paraphrasing of Dr. Rack's testimony), the ALJ stated:
(AR 18-19). Petitioner disputes this finding, arguing that "Dr. Rack did not testify that the Petitioner could perform `limited light work,' and actually limited the Petitioner to sedentary work." Pet.'s Brief, p. 14 (Docket No. 16). To the extent Petitioner contends that the ALJ misquoted Dr. Rack, it must be pointed out that the ALJ never said that Dr. Rack opined that Petitioner could perform limited light work. Rather, the ALJ said only that "the medical evidence establishes that . . . [Petitioner] . . . retains the capability to perform light work" before assigning weight to Dr. Rack's opinions. (AR 19).
More fundamentally, though, Dr. Rack's opinion that Petitioner's low back problem would present "difficulty in doing persistent activities being in a standing or walking position" (see supra (quoting (AR 501)) does not translate into Petitioner being absolutely precluded from doing limited light work, as Petitioner contends. See Pet.'s Brief, p. 15 (Docket No. 16) ("If the Petitioner `would have a lot of difficulty in doing persistent activities being in a standing or walking position' he could not, by definition, perform light work."). Except, even when focusing only on Dr. Rack's limited testimony in this regard (to the exclusion of the medical evidence in the record reflecting Petitioner's physical capabilities (discussed infra)), light work is not limited only to jobs requiring "a good deal of walking or standing"; light work also includes jobs that require "sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. §§ 404.1567(b), 416.967(b). Therefore, the fact that the ALJ determined Petitioner to be capable of performing limited light work is not inconsistent with Dr. Rack's testimony.
Further, even if it was somehow at odds with Dr. Rack's testimony, in moving to step five of the sequential process the ALJ did not identify only light work jobs that exist in significant numbers in the national economy that Petitioner is capable of doing when considering his age, education, work experience, and residual functional capacity. Instead, with the assistance of the impartial vocational expert, Patricia Ayerza, the ALJ also identified three sedentary jobs that exist in significant numbers in the national economy that Petitioner is capable of doing when considering his age, education, work experience, and residual functional capacity. (AR 21); see also, e.g., Reynolds v. Astrue, 2012 WL 1107649, *21 (D. Md. 2012) (upholding ALJ's classification of plaintiff's RFC as permitting limited light work rather than sedentary work where, owing to additional limitations affecting occupational base (such that plaintiff's residual functional capacity did not align perfectly with given strength category), ALJ consulted a vocational expert to determine whether jobs exist for someone with such "in-between" residual functional capacity); Casey v. Colvin, 2015 WL 1810173, *8 (W.D. Va. 2015) (same). With all this in mind, the ALJ did not commit error when characterizing Petitioner's functional ability as light or limited light work. The Court denies Petitioner's claim on this issue.
Petitioner saw Dr. DiBenedetto once since March 19, 2009 — Petitioner's alleged disability onset date. Following that January 11, 2013 visit,
The Ninth Circuit has held that a treating physician's medical opinion is entitled to special consideration and weight. See Rodriguez v. Bowen, 876 F.2d 759, 761 (9
While not commenting here on whether, in fact, Petitioner is disabled, it must be acknowledged that Dr. DiBenedetto's input concerning Petitioner's vocational abilities is not without criticism. First, to the extent Dr. DiBenedetto definitively considers Petitioner disabled,
If the record as a whole does not support Dr. DiBenedetto's opinion (e.g., clinical findings from examinations, conflicting medical opinions, conflicting physicians' treatment notes, claimant's daily activities), the ALJ may reject it. See supra; see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9
In its role as a reviewing court, this Court does not resolve the conflicting opinions and ultimately decide whether Petitioner is once-and-for-all disabled as that term is used within the Social Security regulations. Rather, this Court measures whether or not the ALJ's decision that Petitioner is not disabled is supported by the record. With this in mind, given the conflicting medical opinions, the ALJ must offer specific and legitimate reasons, supported by substantial evidence in the record, for rejecting Dr. DiBenedetto's medical opinions. Because the evidence can reasonably support the ALJ's conclusions on such matters, this Court will not substitute its judgment for that of the ALJ's. See Richardson, 402 U.S. at 401; Matney, 981 F.2d at 1019.
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences from facts and determining credibility. Allen, 749 F.2d at 579; Vincent ex. rel. Vincent, 739 F.2d at 1394; Sample, 694 F.2d at 642. If the evidence is susceptible to more than one rational interpretation, one of which is the ALJ's, a reviewing court may not substitute its interpretation for that of the ALJ. Key, 754 f.2d at 1549.
The evidence upon which the ALJ relied can reasonably and rationally support his well-formed conclusions, despite the fact that such evidence may be susceptible to a different interpretation. Accordingly, the ALJ's decisions as to Petitioner's disability claim generally, as well has his decisions and discussion of evidence concerning the earlier hearing, including the testimony and records of Dr. Rack and Dr. DiBenedetto specifically, were based on proper legal standards and supported by substantial evidence. Therefore, the Commissioner's determination that Petitioner is not disabled within the meaning of the Social Security Act is supported by substantial evidence in the record and is based upon an application of proper legal standards.
Accordingly, the Commissioner's decision is affirmed.
Based on the foregoing, the decision of the Commissioner is AFFIRMED and this action is DISMISSED in its entirety with prejudice.
