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Smith v. Colvin

United States District Court, Ninth Circuit

December 31, 2013

DAVID E. SMITH, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Drew L. Johnson, Eugene, OR, Kathryn Tassinari, Harder, Wells, Baron & Manning, P.C. Eugene, OR, Attorneys for Plaintiff.

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

OPINION AND ORDER

JOHN JELDERKS, Magistrate Judge.

Plaintiff David Smith 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 his application for Supplemental Security Income (SSI) benefits 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.

For the reasons set out below, the Commissioner's decision is affirmed.

Procedural Background

Plaintiff filed an application for SSI on October 15, 2009, alleging that he had been disabled since January 1, 1990.

After his claim had been denied initially and on reconsideration, Plaintiff timely requested an administrative hearing.

On August 4, 2011, a hearing was held before Administrative Law Judge (ALJ) Michael Gilbert. Plaintiff and a Vocational Expert (VE) testified at the hearing.

In a decision filed on October 19, 2011, ALJ Gilbert found that Plaintiff was not disabled within the meaning of the Act. That decision became the final decision of the Commissioner on September 19, 2012, when the Appeals Council denied Plaintiff's request for review. In the present action, Plaintiff challenges that decision.

Background

Plaintiff was born on January 3, 1960, and was 49 years old when he filed his application for SSI benefits. He dropped out of high school in his sophomore year and served in the Army for one year. Plaintiff earned a small amount of money collecting cans and bottles, and had no past relevant work experience.

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(f).

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(g)(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

Plaintiff sought treatment for chest pain and anxiety at an emergency room four times during October 2007. No acute problems were noted during these visits. During the last visit, Ativan was prescribed and Plaintiff was advised to contact a free clinic and look for a primary care physician.

Plaintiff sought emergency care for chest pain and shortness of breath in early November 2007. A treating physician noted that Plaintiff was homeless and was living in his vehicle. Plaintiff was described as extremely anxious and carpopedal spasms and hyperactive motor activity were noted. Plaintiff was diagnosed with anxiety and hyperventilation syndrome, and lorazepam and Ativan were prescribed.

On November 29, 2007, Dr. Rick Wopat began treating Plaintiff for anxiety. Plaintiff reported that he drank four beers per day and indicated that he worked part-time. Dr. Wopat diagnosed benign hypertension and generalized anxiety disorder and advised Plaintiff to reduce his alcohol consumption.

Plaintiff reported acute persistent anxiety when he was seen by Dr. Christopher Collier, another physician in Dr. Wopat's office, on July 23, 2008. Plaintiff had no insurance. He reported severe insomnia, difficulty concentrating, and decreased interest in his usual activities. He said that he had been unable to maintain employment because of persistent anxiety, and reported that he supported himself by doing odd jobs for his friends and family. Dr. Collier noted that Plaintiff had an extremely anxious disposition and a blunted affect, and prescribed Celexa. He thought that Plaintiff's use of a prescribed beta blocker might be contributing to his depressive symptoms.

In his notes of a visit on August 17, 2008, Dr. Collier indicated that Plaintiff had an "INTENSELY anxious disposition, " and had reported palpitations, depression, and decreased concentration and memory. Dr. Collier stated that Plaintiff had a slightly blunted affect, a decreased attention span, and decreased concentration. He thought that hypothyroidism might be contributing to Plaintiff's severe anxiety, but that he would likely experience significant anxiety even in the absence of medical problems.

In his notes of a visit on August 29, 2008, Dr. Collier indicated that, though Plaintiff's anxiety had decreased somewhat, it remained "rather significant nonetheless." Plaintiff had a slightly blunted affect and continued to have "a lot of shakes." Plaintiff told Dr. Collier that he smoked marijuana three times a week, and that his wheezing was worse after he smoked. Dr. Collier indicated that Plaintiff had at least mild to moderate persistent asthma. He increased Plaintiff's dose of Celexa. Dr. Collier indicated that he would prefer to see Plaintiff again in less than six weeks, but that Plaintiff was a "self-pay" and could not afford to see a doctor more frequently.

In his notes of a visit on October 8, 2008, Dr. Collier indicated that Plaintiff's anxiety, depression, and energy levels had improved, but that he continued to experience severe insomnia. With treatment, Plaintiff's essential tremor had improved slightly and his blunted affect had improved significantly.

During a visit on November 21, 2008, Plaintiff reported that he felt much less anxious, had more energy, was sleeping better, had better concentration, and was functioning better in his daily activities. Dr. Collier noted that Plaintiff's essential ...


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