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Brister v. Colvin

United States District Court, Ninth Circuit

May 2, 2013

EVERLINE BRISTER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Merrill Schneider, Schneider Kerr Law Offices, Portland, OR, Attorney for Plaintiff.

S. Amanda Marshall, U.S. Attorney, Adrian L. Brown, Asst. U.S. Attorney, Portland, OR.Daphne Banay, Social Security Administration Office of the General Counsel Seattle, WA, Attorneys for Defendant.

FINDINGS AND RECOMMENDATION

JOHN JELDERKS, Magistrate Judge.

Plaintiff Everline Brister brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for Disability Income Benefits (DIB) and Supplemental Security Income (SSI) under the Social Security Act (the Act). Plaintiff seeks an Order remanding the action to the Social Security Administration (the Agency) for an award of benefits. In the alternative, she seeks an Order remanding the action for further proceedings.

For the reasons set out below, the Commissioner's decision should be remanded to the Agency for further proceedings.

Procedural Background

Plaintiff filed applications for DIB and SSI on December 2, 2008, alleging that she had been disabled since July 31, 2006, because of high blood pressure, vision problems, angina, migraines, an enlarged heart, and high cholesterol.

After her claim had been denied initially on February 20, 2009, and on reconsideration on May 21, 2009, Plaintiff timely requested an administrative hearing.

On June 29, 2010, a hearing was held before Administrative Law Judge (ALJ) Steve Lynch, in Portland, Oregon. Plaintiff and Jennifer Gafney, a Vocational Expert (VE), testified at the hearing.

In a decision filed on July 14, 2010, the ALJ found that Plaintiff was not disabled within the meaning of the Act. While her request for review of that decision was pending before the Appeals Council, Plaintiff submitted an assessment prepared by Dr. Kimberly Goslin, her treating physician, dated November 19, 2011.

The Appeals Council considered Dr. Goslin's opinion and made it part of the record. In a decision dated February 22, 2012, the Appeals Council found that neither this evidence nor the arguments submitted by Plaintiff's counsel provided a basis for altering the ALJ's decision, and denied Plaintiff's request for review. Upon the Appeals Council's denial of Plaintiff's request for review, the ALJ's decision became the final decision of the Commissioner. Plaintiff challenges that decision in the present action.

Background

Plaintiff was born on July 13, 1964, and was 42 years old at the time of her alleged onset of disability in 2006. She has a high school education and has past relevant work experience as a childcare attendant, mail sorter, receptionist, general office clerk, and hair stylist.

Disability Analysis

The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. Below is a summary of the five steps, which also are described in Tackett v. Apfel , 180 F.3d 1094, 1098-99 (9th Cir. 1999).

Step One. The Commissioner determines whether the claimant is engaged in substantial gainful activity (SGA). A claimant engaged in such activity is not disabled. If the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant's case under Step Two. 20 C.F.R. § 404.1520(b).

Step Two. The Commissioner determines whether the claimant has one or more severe impairments. A claimant who does not have such an impairment is not disabled. If the claimant has a severe impairment, the Commissioner proceeds to evaluate the claimant's case under Step Three. 20 C.F.R. § 404.1520(c).

Step Three. Disability cannot be based solely on a severe impairment; therefore, the Commissioner next determines whether the claimant's impairment "meets or equals" one of the presumptively disabling impairments listed in the Social Security Administration (SSA) regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has such an impairment is disabled. If the claimant's impairment does not meet or equal an impairment listed in the regulations, the Commissioner's evaluation of the claimant's case proceeds under Step Four. 20 C.F.R. § 404.1520(d).

Step Four. The Commissioner determines whether the claimant is able to perform relevant work he or she has done in the past. A claimant who can perform past relevant work is not disabled. If the claimant demonstrates he or she cannot do work performed in the past, the Commissioner's evaluation of the claimant's case proceeds under Step Five. 20 C.F.R. § 404.1520(e).

Step Five. The Commissioner determines whether the claimant is able to do any other work. A claimant who cannot perform other work is disabled. If the Commissioner finds that the claimant is able to do other work, the Commissioner must show that a significant number of jobs exist in the national economy that the claimant can do. The Commissioner may satisfy this burden through the testimony of a vocational expert (VE) or by reference to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates that a significant number of jobs exist in the national economy that the claimant can do, the claimant is not disabled. If the Commissioner does not meet this burden, the claimant is disabled. 20 C.F.R. § 404.1520(f)(1).

At Steps One through Four, the burden of proof is on the claimant. Tackett , 180 F.3d at 1098. At Step Five, the burden shifts to the Commissioner to show that the claimant can perform jobs that exist in significant numbers in the national economy. Id.

Medical Record

Like the parties, I will not summarize the medical record separately, and will address relevant evidence from that record in discussing Plaintiff's contentions below.

Testimony

Plaintiff

Plaintiff testified as follows at the hearing before the ALJ.

Plaintiff has an unusually located abdominal hernia that causes pain, prevents her from comfortably lying on her side, and limits her ability to relieve swelling in her legs by elevating them while sitting. Plaintiff planned to have surgery for the hernia but first needed to see a kidney specialist because she had kidney failure and needed to consider how surgery would affect her kidneys. Plaintiff had inflamation throughout her body and had lost some eyesight because of diabetes. Many of Plaintiff's medical records "contradict themselves back and forth" and it is difficult to determine the causes of some of her medical problems.

Plaintiff eats "maybe one meal a day." She is 4 feet 10 inches tall and weighs approximately 240 pounds. Because of her hernia, "everything sits there and doesn't go down." Much of Plaintiff's weight is fluid.

Plaintiff has sleep apnea and uses a CPAP machine. Though the machine helps her sleep, she continues to awaken several ...


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