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Elstun v. Commissioner Social Security Administration

United States District Court, Ninth Circuit

October 9, 2013

PENNY R. ELSTUN, Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.

MAX RAE, Salem, Oregon, Attorney for Plaintiff.

S. AMANDA MARSHALL, United States Attorney, ADRIAN L. BROWN, Assistant United States Attorney, Portland, Oregon, GERALD J. HILL, Special Assistant United States Attorney Office of the General Counsel, Social Security Administration Seattle, Washington. Attorneys for Defendant.

OPINION AND ORDER

MALCOLM F. MARSH, District Judge.

Plaintiff, Penny R. Elstun, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act) and supplemental security income (SSI) disability benefits under Title XVI of the Act. See 42 U.S.C. §§ 401-434, 1381-1383f. This court has jurisdiction pursuant to 42 U.S.C. § 405 (g). For the reasons set forth below, I reverse the final decision of the Commissioner and remand for further proceedings consistent with this opinion.

PROCEDURAL BACKGROUND

Plaintiff filed prior applications for SSI and DIB on October 3, 2007, which were denied initially and upon reconsideration. Plaintiff then protectively filed the instant applications for DIB and SSI on April 13, 2009, alleging disability due to "[l]ower back and both legs and mental health problems." Tr. 205. Her applications were again denied initially and upon reconsideration. A hearing was held before an Administrative Law Judge (ALJ) on June 9, 2011, at which plaintiff was represented by counsel and testified. Vocational Expert (VE) Nancy Bloom was also present throughout the hearing and testified.

On August 19, 2011, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. After the Appeals Council declined review of the ALJ's decision, plaintiff timely filed a complaint in this court.

FACTUAL BACKGROUND

Born on August 8, 1974, plaintiff was 32 years old on the alleged onset date of disability and 36 years old on the date of the hearing. Plaintiff has a high school diploma with some college education, and past relevant work as a Caregiver. Tr. 35, 209.

Plaintiff alleges her conditions became disabling on August 9, 2006. Tr. 149. In addition to her hearing testimony, plaintiff submitted an Adult Function Report. Tr. 229-36. Plaintiff's mother, Jerrie Lynn Elstun submitted an Adult Third Party Function Report. Tr. 239-46. Also of record are an Adult Function Report submitted by plaintiff for her 2007 application, as well as a Third Party Function Report submitted by plaintiff's then-boyfriend, Arvel Ray Monroe filed in relation to the prior application. Tr. 174-81, 185-92.

In addition to a number of other examining physician reports and Residual Functional Capacity Assessments of record that are not directly at issue in this appeal, the record contains multiple chart notes and letters addressed to various agencies about plaintiff's conditions from plaintiff's treating nurse practitioner, Julie Slind-Hull, FNP.

THE ALJ'S DISABILITY ANALYSIS

The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert , 482 U.S. 137, 140-42 (1987); 20 C.F.R. §§ 404.1520(a) (4) (i)-(v), 416.920(a) (4) (i)-(v). Each step is potentially dispositive. The claimant bears the burden of proof at Steps One through Four. Tackett v. Apfel , 180 F.3d 1094, 1098 (9th Cir. 1999). The burden shifts to the Commissioner at Step Five to show that a significant number of jobs exist in the national economy that the claimant can perform. See Yuckert , 482 U.S. at 141-42; Tackett , 180 F.3d at 1098.

At Step One, the ALJ determined that plaintiff has not engaged in substantial gainful activity since the alleged onset date, August 9, 2006. See 20 C.F.R. §§ 404.1571 et seq., 416.971 et seq.; Tr. 24.

At Step Two, the ALJ found that plaintiff's major depressive disorder, anxiety, degenerative disc disease, and history of seizures were severe impairments. See 20 C.F.R. §§ 404.1520(c), 416.920(c); Tr. 24-25.

At Step Three, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meet or medically equal any listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 25-26.

The ALJ found that plaintiff has the residual functional capacity (RFC) to perform light work, but can only perform unskilled work with no public interaction; can only occasionally crawl, climb, crouch, or kneel; cannot perform fine precision work; and cannot: work in environments with exposure to unprotected heights, moving machinery, or commercial driving. Tr. 26-35.

At Step Four, the ALJ found that plaintiff is unable to perform her past relevant work as a Caregiver. See 20 C.F.R. §§ 404.1565, 416.965; Tr. 35.

At Step Five, the ALJ found that jobs exist in significant numbers in the national economy that plaintiff can perform, including Microfilm Document Preparer, Conveyor Line Bakery Worker, and Mail Clerk. See 20 C.F.R. §§ 404.1569, 404.1569(a), 404.1568(d), 416.969, 416.969(a); Tr. 35-37.

Accordingly, the ALJ found that plaintiff was not disabled within the meaning of the Act.

ISSUES ON REVIEW

Plaintiff raises eight issues on appeal. First, plaintiff asserts that the ALJ erred in failing to reopen plaintiff's 2007 application. Second, plaintiff argues that the ALJ erroneously omitted plaintiff's L5 radiculopathy as a severe impairment at Step Two. Third, plaintiff claims that the ALJ erroneously discredited her testimony. Fourth, plaintiff argues that the ALJ cited inadequate reasons for rejecting the opinion of Ms. Slind-Hull. Fifth, plaintiff maintains that the ALJ erroneously discredited Ms. Elstun and Mr. Monroe's lay testimony without discussion. Sixth, plaintiff asserts that the ALJ failed to properly consider a disability finding by a Vocational Rehabilitation Servcies (VRS) official. Seventh, plaintiff claims the ALJ made miscellaneous errors in formulating the RFC. ...


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