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Ostrowski v. Astrue

United States District Court, D. Montana, Billings Division

October 25, 2012

Carol Louise OSTROWSKI, Plaintiff,
Michael J. ASTRUE, Commissioner of Social Security, Defendant.

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Carol Louise Ostrowski, Boulder, CO, pro se.

Leif M. Johnson, Office of the U.S. Attorney, Billings, MT, Pamela M. Wood, Office of the General Counsel, Denver, CO, for Defendant.


CAROLYN S. OSTBY, United States Magistrate Judge.

Plaintiff Carol Louise Ostrowski (" Ostrowski" ), appearing pro se, seeks judicial

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review of Defendant Commissioner of Social Security's (" Commissioner" ) decision denying her applications for disability insurance benefits (" DIB" ) and supplemental security income (" SSI" ) under Titles II and XVI of the Social Security Act (" the Act" ), 42 U.S.C. §§ 401-433, 1381-1383(c). Complt. (DKT 3). After the parties consented in writing, this case was assigned to the undersigned for all proceedings. DKT 13.

Now pending are the parties' cross-motions for summary judgment. DKTs 21 (Ostrowski's motion) and 23 (Commissioner's motion). For the reasons stated below, the Court denies Ostrowski's motion, grants the Commissioner's motion, and affirms the Commissioner's decision denying DIB and SSI.


On June 25, 2008, Ostrowski filed her DIB and SSI applications. Tr. 119-21, 124-30. She alleged that she had been unable to work since October 2007 because of back and hip pain, vertigo, bilateral plantar fasciitis, and a ganglion cyst on her right wrist. See, e.g., Tr. 250-51. A state agency and the Social Security Administration (" SSA" ) denied Ostrowski's claims. Tr. 55-56, 73-76.

On December 9, 2009, an Administrative Law Judge (" ALJ" ) held a hearing. Tr. 16-54. On January 22, 2010, the ALJ issued a written decision denying Ostrowski's claims. Tr. 60-69. On December 8, 2011, after the Appeals Council denied Ostrowski's request for review, the ALJ's decision became final for purposes of judicial review. Tr. 1-5; 20 C.F.R. §§ 404.981, 416.1481 (2012). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g).


This Court's review is limited. The Court may set aside the Commissioner's decision only where the decision is not supported by substantial evidence or where the decision is based on legal error. Ryan v. Commr. of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.2008); 42 U.S.C. § 405(g). " Substantial evidence is more than a mere scintilla, but less than a preponderance." Id. (citing Bayliss v. Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir.2005) (internal quotation marks omitted)). " It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks and citation omitted).

The Court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusion, and cannot affirm the ALJ " by isolating a specific quantum of supporting evidence." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.2006) (internal quotation marks and citation omitted). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. " Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.2002) (internal citation omitted).


A claimant is disabled for purposes of the Act if: (1) the claimant has a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months, and (2) the impairment or impairments are of such severity that, considering the claimant's age, education, and work experience, the claimant is not only unable to perform previous work, but the claimant cannot

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" engage in any other kind of substantial gainful work which exists in the national economy." Schneider v. Commr. of Soc. Sec. Admin., 223 F.3d 968, 974 (9th Cir.2000) (citing 42 U.S.C. § 1382c(a)(3)(A)-(B)).

In determining whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999); 20 C.F.R. § 404.1520(a)(4)(i)-(v).

1. The claimant must first show that he or she is not currently engaged in substantial gainful activity. Tackett, 180 F.3d at 1098.
2. If not so engaged, the claimant must next show that he or she has a severe impairment. Id.
3. The claimant is conclusively presumed disabled if his or her impairments meet or medically equal one contained in the Listing of Impairments described in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (hereafter " Listing of Impairments" ). Id. If the claimant's impairments do not meet or medically equal one listed in the regulations, the analysis proceeds to the fourth step.
4. If the claimant is still able to perform his or her past relevant work, he or she is not disabled and the analysis ends here. Id. " If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at [this step] and the evaluation proceeds to the fifth and final step." Id. at 1098-99.
5. If the claimant is unable to perform his or her past relevant work due to a " severe impairment (or because [he or she does] not have any past relevant work)" the court will determine if the claimant is able to make an adjustment to perform other work, in light of his or her residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(g). If an ...

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