Listiak v. Commissioner of Social Security Administration

          ORDER

          G. Murray Snow Chief United States District Judge.

         Pending before the Court is the appeal of Plaintiff Rebecca Listiak, which challenges the decision of the Social Security Administration to deny benefits to her deceased husband, (“claimant”). (Doc. 15). For the following reasons, the case is remanded to the ALJ for further proceedings.

         BACKGROUND

         On July 22, 2011, the claimant applied for disability insurance benefits, alleging a disability onset date of September 30, 2009. (Tr. at 17). The claim was denied initially and upon reconsideration. (Tr. at 49; Tr. at 51). Plaintiff then appealed to an Administrative Law Judge (“ALJ”). Before the first hearing on the matter, Mr. Listiak passed away. The ALJ conducted a hearing of the matter on November 13, 2013, and subsequently issued a decision denying benefits, which found that Mr. Listiak retained the ability to perform light work up until his death in 2013. (Tr. at 14-30). Plaintiff then appealed this determination to the Appeals Council, which denied the request for review.

         Then, Plaintiff filed a lawsuit in this Court arguing that the ALJ's decision was not free from legal error. (Tr. 804, 801). In that proceeding, the Commissioner stipulated there was legal error, so the court remanded the case back to the ALJ with instructions to render a new decision. (Tr. 813).^[1]

         After remand, the ALJ conducted additional investigation and supplemental hearings (Tr. 735). In this second decision, the ALJ again undertook the five-step sequential evaluation for determining disability. (Tr. at 717). At step one, the ALJ found that the claimant did not engage in substantial gainful activity after the alleged onset date. (Tr. at 717). At step two, the ALJ determined that the claimant suffered from the severe impairments of ischemic heart disease, peripheral arterial disease, chronic venous insufficiency, triple vessel coronary artery disease, bilateral hip avascular necrosis, and lumbar degenerative disc disease. (Tr. at 717). At step three, the ALJ found that none of these impairments-either alone or in combination-met or equaled any of the Social Security Administration's listed impairments prior to March 2012. (Tr. at 719). The ALJ determined that prior to March 2012, the claimant had the residual functional capacity to perform sedentary work. At step four, the ALJ determined that the claimant, prior to March 2012, retained the ability to perform his past work as a golf club manager at a sedentary level. (Tr. at 723).

         DISCUSSION

         I. Standard of Review

         A reviewing federal court will only address the issues raised by the claimant in the appeal from the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A federal court may set aside a denial of disability benefits only if that denial is either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less than a preponderance.” Id. (quotation omitted). “Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion.” Id. (quotation omitted).

         However, the ALJ is responsible for resolving conflicts in testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is because “[t]he [ALJ] and not the reviewing court must resolve conflicts in evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted).

         II. Analysis

         Plaintiff argues that the ALJ erred by classifying the claimant's past work as golf club manager and finding that he could perform that work in the national economy prior to March 2012.

         A. ALJ's Vocational Determination

         At step four, “a claimant has the burden to prove that he cannot perform his past relevant work either as actually performed or as generally performed in the national economy.” Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (internal citation and quotation marks omitted). An ALJ may use either the “actually performed test, ” or the “generally performed test” when evaluating whether a claimant may perform past work. Id. The generally performed test is ...