United States District Court, D. Oregon
Tim D. Wilborn, Wilborn Law Office, P.C., Las Vegas, Nevada, Attorney for plaintiff.
S. Amanda Marshall, United States Attorney, Adrian L. Brown, Assistant United States Attorney, Portland, Oregon, Richard A. Morris, Social Security Administration, Seattle, Washington, Attorneys for defendant.
OPINION AND ORDER
ANN AIKEN, Chief District Judge.
Plaintiff Michele Belanger brings this action pursuant to the Social Security Act ("Act") to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiff's application for Title XVI supplemental security income ("SSI")under the Act. For the reasons set forth below, the Commissioner's decision is affirmed and this case is dismissed.
This case has a long and complicated procedural history. Plaintiff applied for SSI on December 15, 1998. Tr. 74, 154, 2467. The application was denied initially and upon reconsideration. Tr. 46, 2467. After a hearing, the Administrative Law Judge ("ALJ") issued a decision, on March 31, 2001, finding plaintiff not disabled within the meaning of the Act. Tr. 910-21, 1397-1442, 2467. The Appeals Council accepted review and remanded the case for further proceedings. Tr. 933-35, 2467. On January 28, 2005, after a second administrative hearing, the ALJ issued another unfavorable decision. Tr. 16-25, 1369-96, 2467. After the Appeals Council declined jurisdiction over the ALJ's 2005 decision, plaintiff filed a complaint in this Court. Tr. 2468.
On October 1, 2008, the Court reversed and remanded the ALJ's decision, pursuant to sentence six of 42 U.S.C. § 405(g), based on the existence of new and material evidence. Tr. 1476-77, 2468. Accordingly, on June 22, 2009, the Appeals Council vacated the ALJ's 2005 decision and remanded this case for further proceedings. Tr. 1478-80, 2468.
On April 29, 2010, a third ALJ hearing was held, wherein plaintiff was represented by counsel and testified, as did a vocational expert ("VE"). Tr. 2421-58, 2468. On May 19, 2010, the ALJ issued a third decision finding plaintiff not disabled. Tr. 1456-75, 2468. The Appeals Council initially declined jurisdiction after plaintiff filed exceptions; however, upon further review, the Appeals Council issued a remand order, for additional proceedings, to ensure that the ALJ considered additional evidence submitted at the April 2010 hearing. Tr. 1445-55, 2468, 2590-94. On August 20, 2012, a fourth hearing was held, where plaintiff was once again represented by counsel and testified. Tr. 2621-38. On September 21, 2012, the ALJ issued a fourth decision finding plaintiff not disabled under the Act. Tr. 2464-89. On May 28, 2013, after the Appeals Council denied review of the ALJ's 2012 decision, this Court granted the parties' stipulated motion to reopen plaintiff's appeal.
STATEMENT OF FACTS
Born on August 14, 1957, plaintiff was 41 years old on the alleged onset date of disability and 55 years old at the time of the 2012 hearing. Tr. 54. Plaintiff graduated from high school and thereafter served in the navy for approximately four years; she also attended some college courses. Tr. 1400, 2130-31. She previously worked as a receptionist, medical clerk, media clerk, administrative assistant, and teacher's assistant. Tr. 2451. Plaintiff alleges disability as of December 15, 1998, due to fibromyalgia, obesity, depression, and costochontritis. Tr. 74; see also Pl.'s Opening Br. 2.
STANDARD OF REVIEW
The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen , 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B. , 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler , 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. See Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler , 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected.. to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d) (1) (A). The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert , 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." Yuckert , 482 U.S. at 140; 20 C.F.R. § 416.920(b). If so, the claimant is not disabled.
At step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert , 482 U.S. at 140-41; 20 C.F.R. § 416.920(c) If the claimant does not have a severe impairment, she is not disabled.
At step three, the Commissioner determines whether the claimant's impairments, either singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful abtivity." Yuckert , 482 U.S. at 140-41; 20 C.F.R. § 416.920(d). If so, the claimant is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert , 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 416.920(e). If the claimant can work, she is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national and local economy. Yuckert , 482 U.S. at 141-42; 20 C.F.R. § 416.920 (e) & (f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 416.966.
THE ALJ'S FINDINGS
At step one of the five step sequential evaluation process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since the application date. Tr. 2470. At step two, the ALJ determined that plaintiff had the following severe impairments: "fibromyalgia/myofascial pain syndrome; pain disorder; depressive disorder; obesity; and costochontritis." Id . At step three, the ALJ found that plaintiff's impairments did not meet or equal the requirements of a listed impairment. Tr. 2473.
Because she did not establish disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that plaintiff had the residual functional capacity ("RFC") to perform a "modified range of sedentary work, " as defined by 20 C.F.R. § 416.967(a):
[s]he can sit six hours in an eight-hour day; stand two hours in an eight-hour day; lift and carry up to five pounds; no reaching overhead; only walk slowly and deliberately on even surfaces; because of pain and deficits in concentration, [plaintiff] should not perform ...