Lantrip v. Commissioner of Social Security

Filing 26

MEMORANDUM DECISION AND ORDER - It is hereby ORDERED that the Commissioners decision finding that the Petitioner is not disabled within the meaning of the Social Security Act is AFFIRMED and that the petition for review is DISMISSED. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ROBIN LANTRIP,
Petitioner,

Case No. 2:15-cv-00004-CWD

v.

MEMORANDUM DECISION
AND ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,

Respondent.

INTRODUCTION
Before the Court is Robin Lantrip’s Petition for Review of Respondent’s denial of
social security benefits, filed January 5, 2015. 1 (Dkt. 1.) The Court has reviewed the
Petition for Review and the Answer, the parties’ memoranda, and the administrative
record (AR). For the reasons that follow, the Court will affirm the decision of the
Commissioner.

1

Petitioner filed the document as “Complaint,” but the Court will construe it as a Petition
for Review of the Respondent’s denial of social security benefits.
MEMORANDUM DECISION AND ORDER - 1

PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on May 2, 2011, claiming disability beginning August 1, 2008, due to
musculoskeletal impairments of the spine and left knee. This application was denied
initially and on reconsideration, and a hearing was held on May 2, 2013, before
Administrative Law Judge (ALJ) R.J. Payne. After hearing testimony from Petitioner and
an impartial medical expert, Minh D. Vu, M.D., ALJ Payne issued a decision finding
Petitioner not disabled on May 31, 2013. Petitioner timely requested review by the
Appeals Council, which denied her request for review on November 6, 2014. Petitioner
appealed this final decision to the Court. The Court has jurisdiction to review the ALJ’s
decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing, Petitioner was 64 years of age. Petitioner completed
four or more years of college and her prior work experience includes work as a tax
administrator for the state of California.
SEQUENTIAL PROCESS
The Commissioner follows a five-step sequential evaluation for determining
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. Petitioner bears the
burden of proof at steps one through four. Bustamante v. Massanari, 262 F.3d 949, 953
(9th Cir. 2001). At step one, it must be determined whether the claimant is engaged in
substantial gainful activity. The ALJ found Petitioner had not engaged in substantial
gainful activity since her alleged onset date, August 1, 2008. At step two, it must be
MEMORANDUM DECISION AND ORDER - 2

determined whether the claimant suffers from a severe impairment. The ALJ found
Petitioner’s musculoskeletal impairments of the spine and left knee were severe within
the meaning of the Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed
impairment. The ALJ found Petitioner’s impairments did not meet or equal the criteria
for the listed impairments. Specifically, the ALJ found Petitioner’s degenerative disk
disease of the spine did not meet the requirements of Listing 1.04 (disorders of the spine),
and Petitioner’s muskoloskeletal impairment of the left knee did not meet the
requirements of Listing 1.02 (major dysfunction of a joint). If a claimant’s impairments
do not meet or equal a listing, the Commissioner must assess the claimant’s residual
functional capacity (RFC) and determine, at step four, whether the claimant has
demonstrated an inability to perform past relevant work.
The ALJ found Petitioner had the RFC to perform a “wide range of light work”
and could perform:
work that does not involve lifting and/or carrying more than a maximum of
20 pounds occasionally or more than a maximum of 10 pounds frequently.
She can sit, stand, and walk for 6 hours each in an 8-hour workday with
normal breaks. The claimant can perform work that does not involve more
than occasional overhead reaching with the bilateral upper extremities. She
can also perform work that does not involve more than occasional
balancing, bending, stooping, kneeling, crouching, or crawling; no climbing
of ladders, ropes, or scaffolds and should avoid concentrated exposure to
unprotected heights or hazardous moving machinery.
(Dkt. 14-2 at 16.) Considering these limitations, the ALJ determined Petitioner was
capable of performing her past relevant work as a tax administrator as she actually
MEMORANDUM DECISION AND ORDER - 3

performed it. (Dkt. 14-2 at 21.) Accordingly, the ALJ did not proceed to step five 2
because Petitioner did not demonstrate an inability to perform past relevant work.
STANDARD OF REVIEW
Petitioner bears the burden of showing that disability benefits are proper because
of the inability “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see
also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971).
An individual will be determined to be disabled only if her physical or mental
impairments are of such severity that she not only cannot do her previous work but is
unable, considering her age, education, and work experience, to engage in any other kind
of substantial gainful work which exists in the national economy. 42 U.S.C. §
423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Commissioner if
the decision is supported by substantial evidence and is not the product of legal error. 42
U.S.C. § 405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474
(1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v.
Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
2

At step five, if the claimant demonstrates an inability to perform past relevant work, the burden shifts to
the Commissioner to demonstrate the claimant retains the capacity to make an adjustment to other work that exists
in significant levels in the national economy, after considering the claimant’s residual functional capacity, age,
education, and work experience.

MEMORANDUM DECISION AND ORDER - 4

Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a
preponderance, Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,
565 (1988).
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports the petitioner’s
claims. 42 U.S.C. § 405(g); Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,
1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by
substantial evidence, will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if
there is substantial evidence to support the decision of the Commissioner, the decision
must be upheld even when the evidence can reasonably support either affirming or
reversing the Commissioner’s decision, because the Court “may not substitute [its]
judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th
Cir. 1999).
When reviewing a case under the substantial evidence standard, the Court may
question an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s
credibility assessment is entitled to great weight, and the ALJ may disregard a claimant’s
self-serving statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where
the ALJ makes a careful consideration of subjective complaints but provides adequate
reasons for rejecting them, the ALJ’s well-settled role as the judge of credibility will be
upheld as based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th
MEMORANDUM DECISION AND ORDER - 5

Cir. 1993).
DISCUSSION
Petitioner contends the ALJ erred at step four by determining Petitioner was able
to perform her past relevant work as a tax administrator as she actually performed it.
Petitioner asserts the ALJ erred because he failed to consider evidence that Petitioner
medically retired from her job as a tax administrator with the California Retirement
System (calPERS), and that she had been working in an accommodated position for
several years prior to retirement. 3 Petitioner further argues the ALJ erred by failing to
consider additional evidence, such as Vocational Expert (VE) testimony or the Dictionary
of Occupational Titles (DOT), at any stage of the proceedings to determine the physical
and mental demands the job “tax administrator” actually required.
1. CalPERS Determination
Petitioner asserts she provided the ALJ with evidence she was determined unable
to perform her job as a tax administrator by the California Retirement System (calPERS).
Petitioner testified the State of California recognized she was “disabled” because she
“retired on disability” from her position as tax administrator. (Dkt. 14-2 at 51-52.)
Under 20 C.F.R. § 404.1504, the ALJ is not bound by any decisions of a nongovernmental or governmental agency that a claimant is disabled, such as a state
retirement program, in social security determinations. However, the ALJ is “required to

3

Petitioner testified accommodations at her job included an adjustable chair and footrest, hand
pads, and mouse controls. (Dkt. 17 at 4.) She also wrote on the Disability Report-Adult-Form SSA-3368
“large things were carried by others for me.” (Dkt. 14-6 at 7-8.)
MEMORANDUM DECISION AND ORDER - 6

evaluate all the evidence in the case record that may have a bearing on our determination
or decision of disability, including decisions by other governmental and nongovernmental
agencies. Therefore, evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered.” SSR 06-03p, 2006 WL
2329939 at *6.
Thus, the ALJ should have considered and discussed in his opinion his evaluation
of the calPERS’ determination that Petitioner could “retire on disability.” The ALJ’s
failure to mention the calPERS’ decision leaves unclear what weight, if any, the ALJ
gave to the determination. Although the ALJ erred by omitting an analysis of the
calPERS determination in his disability decision, it was harmless error. An error is
harmless when the error did not prejudice the claimant or was irrelevant to the ALJ’s
ultimate disability conclusion. Stout v. Commissioner, Soc. Security Admin., 454 F.3d
1050, 1055 (9th Cir. 2006).
Here, calPERS’ determination is not relevant to the ALJ’s ultimate conclusion that
Petitioner could perform her past relevant work as it was actually performed. First,
calPERS’ decision is non-binding in social security determinations. Second, Petitioner
presented no evidence regarding the standard calPERS used in its determination that
Petitioner could “retire on disability.” In other words, there is no information what
limitations calPERS considered in making its determination. The ALJ considered
Petitioner’s testimony about her limitations and found Petitioner’s limitations did not
limit her to the extent she claimed based on a consideration of the substantial evidence in
MEMORANDUM DECISION AND ORDER - 7

the record. Petitioner did not carry her burden of establishing why calPERS’
determination should carry any weight in the ALJ’s disability determination or his
conclusions at step four. Accordingly, the ALJ’s error was harmless.
2. Past Relevant Work
At step four, the ALJ concluded Petitioner was capable of performing her past
relevant work as a tax administrator as it was actually performed because the job did not
involve tasks precluded by her RFC. (Dkt. 14-2 at 21.) Petitioner bears the burden of
proving she cannot perform her past relevant work as it was actually performed. 20
C.F.R. § 404.1512(a).
The Social Security Administration defines “past relevant work” as “work you
have done within the past 15 years, that was substantial gainful activity, and that lasted
long enough for you to learn to do it.” 20 C.F.R. § 404.1565(a). The regulations further
describe that “substantial gainful activity is work activity that is both substantial and
gainful.” 20 C.F.R. § 404.1572. “Substantial work activity is work activity that involves
doing significant physical or mental activities.” 20 C.F.R. § 404.1572(a). “Gainful work
activity is work activity that you do for pay or profit.” 20 C.F.R. § 404.1572(b). To
determine whether a job is considered substantial gainful activity, an ALJ must also
consider the nature of the work, how well claimant performed the work, if the work was
performed under special conditions, and time spent at the work. 20 C.F.R. § 404.1573.
Work performed under special conditions, “such as work done in a sheltered
workshop or as a patient in a hospital,” may not be considered substantial gainful activity.
MEMORANDUM DECISION AND ORDER - 8

20 C.F.R. § 404.1573(c). But, work done with minor accommodations is not necessarily
work performed under “special conditions” that would preclude it from being considered
substantial gainful activity. See Katz v. Sec. Health & Hum. Servs., 972 F.2d 290, 294
(9th Cir. 1992). In Katz, the claimant’s employer allowed the claimant to work with
minor accommodations that included receiving help moving into a smaller office away
from noise distractions. Id. The Court of Appeals for the Ninth Circuit held the job
modifications allowed by the claimant’s employer were relatively minor and not the
equivalent of a “sheltered workshop.” Id.
Petitioner does not dispute her prior job working as a tax administrator for 15
years constitutes “past relevant work.” Petitioner asserts instead that her previous job as a
tax administrator is not past relevant work to which she could potentially return, because,
at least towards the end of her career, it was performed with accommodations. (Dkt. 17 at
4.) Petitioner argues the ALJ erred by using Petitioner’s job description as stated in her
Disability Report-Adult-Form SSA-3368 (Dkt. 14-6 at 7–8), which described an
accommodated position, to determine she could perform her past relevant work as it was
“actually performed.” The Commissioner counters, arguing that Petitioner’s
accommodations for working as a tax administrator were “relatively minor and did not
impair her ability to do her job duties of supervision, report assessment, meetings, and
project management.” (Dkt. 22 at 7.)
An ALJ may determine a claimant retains the capacity to perform her past relevant
work in three circumstances: (1) if the claimant retains the capacity to perform a past
MEMORANDUM DECISION AND ORDER - 9

relevant job based on a broad, occupational classification of the job; (2) if the claimant
retains the capacity to perform the particular functional demands and job duties specific
to a previous job as she actually performed it; or (3) if the claimant retains the capacity to
perform the functional demands and duties of the job as ordinarily required by employers
throughout the national economy. SSR 82-61, 1982 WL 31387. Here, the ALJ applied the
second test and found Petitioner capable of performing her past relevant work as a tax
administrator as it was actually performed. (Dkt. 14-2 at 21.)
An ALJ may find a claimant is not disabled if she can perform past relevant work
"either as actually performed or as generally performed in the national economy." Lewis
v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (citing Pinto, 249 F.3d at 845). The
Ninth Circuit has “never required explicit findings at step four regarding a claimant’s past
relevant work both as generally performed and as actually performed.” Pinto v.
Massanari, 249 F.3d 840, 845 (9th Cir. 2001). "[T]he claimant is the primary source for
vocational documentation, and statements by the claimant regarding past work are
generally sufficient for determining skill level; exertional demands and nonexertional
demands of such work." SSR 82-62, 1982 WL 31386; see also Matthews v. Shalala, 10
F.3d 678, 681 (9th Cir. 1993) (discussing that a claimant's description of past work is
considered highly probative).
The ALJ referenced Exhibit 2E, Petitioner’s Disability Report-Adult-Form SSA3368, in his conclusion that Petitioner was able to perform her past relevant work as it
was actually performed, which included Petitioner’s description of the physical demands
MEMORANDUM DECISION AND ORDER - 10

of her job as a tax administrator. (Dkt. 14-6 at 7–8.) Petitioner contends that, although the
work description in the Disability Report described a mainly sedentary position,
Petitioner wrote on the form “large things were carried by others for me,” which
purportedly indicated one of the accommodations she had in the job. (Dkt. 17 at 3.)
Further, Petitioner points to (1) her testimony regarding the accommodations; and (2) the
calPERS determination, as additional evidence presented to the ALJ that supports her
position that she worked in an accommodated position. (Dkt. 17 at 3–4.)
Substantial evidence supports the ALJ’s determination that Petitioner was able to
perform her past relevant work as a tax administrator as it was actually performed, with
minimal accommodations. While the ALJ referenced the Disability Report in his
conclusion that Petitioner could perform her past relevant work as actually performed, he
also stated “her job as actually performed does not involve tasks that are precluded by the
residual functional capacity outlined above.” (Dkt. 14-2 at 21.) In determining
Petitioner’s RFC, the ALJ relied upon the independent medical expert’s testimony,
Petitioner’s own statements, and Petitioner’s medical records, as the basis for his
conclusion that Petitioner retained the RFC to perform the tasks required in her position
as tax administrator.
The independent medical expert testified Petitioner was able to “perform a wide
range of light work,” and could “stand and/or walk for a total of 6 hours during an 8 hour
workday with normal breaks.” Petitioner testified she is able to perform many daily tasks,
go to the gym, travel to New York City to visit her daughter, and engage in a variety of
MEMORANDUM DECISION AND ORDER - 11

social activities. Based on this substantial evidence in the record, the ALJ’s finding that
Petitioner’s RFC did not preclude her from performing her past relevant work as actually
performed is properly supported. Although Petitioner’s past relevant work included some
minimal accommodations, she was capable of performing the job with those
accommodations.
3. Failure to Use Additional Evidence
Petitioner argues the ALJ erred by not utilizing other sources, such as a Vocational
Expert (VE) or the Dictionary of Occupational Titles, to determine the physical and
mental demands Petitioner’s job as a tax administrator actually required. Instead, the ALJ
referenced only Petitioner’s own description of the accommodated job position in the
Disability Report as the basis of his determination. (Dkt. 14-2 at 21.)
Vocational expert testimony is optional at step four and is a mandatory source for
a determination at step five only. Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996).
Here, the ALJ did not proceed to step five, because Petitioner was found able to perform
past relevant work as it was actually performed. Thus, the ALJ did not have to rely on the
testimony of a vocational expert to make his determination that Petitioner was not
disabled.
The Dictionary of Occupational Titles is primarily used to determine how a job is
generally performed in the national economy. See SSR 82-61; Pinto v. Massanari, 249
F.3d 840 (2001). “The regulations advise an ALJ to first consider past work as actually
performed, and then as usually performed.” Pinto v. Massanari, 249 F.3d 840, 845
MEMORANDUM DECISION AND ORDER - 12

(2001). Because the ALJ found Petitioner was able to perform her past relevant work as it
was actually performed, and his decision was based on substantial evidence in the record,
he was not required to determine whether Petitioner was capable of performing the job as
it is generally performed in the national economy.
The ALJ did not err by failing to reference additional sources when making his
determination at step four, because substantial evidence in the record supports the finding
Petitioner retained the RFC to perform her past relevant work as it was actually
performed. Thus the ALJ was not required to analyze whether she could perform past
relevant work as it is generally performed in the national economy, and was not required
to proceed to step five.
ORDER
Based upon the foregoing, the Court being otherwise fully advised in the premises,
it is hereby ORDERED that the Commissioner’s decision finding that the Petitioner is
not disabled within the meaning of the Social Security Act is AFFIRMED and that the
petition for review is DISMISSED.
March 09, 2016

MEMORANDUM DECISION AND ORDER - 13