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Markvardsen v. Colvin

United States District Court, D. Oregon

April 28, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Merrill Schneider, Schneider Kerr & Gibney, P.O. Box 14490, Portland, OR 97293. Of Attorneys for Plaintiff.

Amanda Marshall, United States Attorney, and Adrian L. Brown, Assistant United States Attorney, U.S. Attorney's Office, District of Oregon, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204; Jordan D. Goddard, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of Attorneys for Defendant.


MICHAEL H. SIMON, District Judge.

Curtis G. Markvardsen ("Markvardsen" or "Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his application for disability insurance benefits ("DIB"). For the following reasons, the Court AFFIRMS the Commissioner's decision.


The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means "more than a mere scintilla but less than a preponderance." Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews, 53 F.3d at 1039).

Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm'r, 359 F.3d 1190, 1193 (9th Cir. 2004). "[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id .; see also Bray, 554 F.3d at 1226.


A. Plaintiff's Application

Mr. Markvardsen is currently 56 years old. On March 15, 1997, he applied for DIB, alleging a disability onset date of August 14, 1991, which is several years before his date last insured of December 31, 1996. AR 37, 41, 154. In 1997, Markvardsen's March 1997 application was denied by the Commissioner ("1997 Determination"), and Markvardsen did not submit a request for an appeal. AR 154. On February 16, 2005, Markvardsen filed another application for DIB ("February 2005 Application"), again alleging a disability onset date of August 14, 1991. AR 141-43. Markvardsen's February 2005 Application was denied on February 21, 2005, and again on reconsideration on May 13, 2005. AR 89-91, 85-87. On April 3, 2005, Markvardsen's wife filed a Disability Report-Appeal that indicated Markvardsen was filing for reconsideration and that his alleged disability had gotten worse since his last completed disability report from February 21, 2005. AR 148-51. Markvardsen filed a request for a hearing on July 12, 2005. AR 154. On August 30, 2005, the ALJ dismissed Markvardsen's request for a hearing on the basis of res judicata. AR 165-66. This dismissal was subsequently vacated by the ALJ on September 30, 2005. AR 153-54.

On June 17, 2008, the ALJ conducted a hearing to address Markvardsen's February 2005 Application and to determine if the 1997 Determination should be reopened. AR 50, 65, 562-71.[1] The ALJ issued an opinion on September 23, 2008, both declining to reopen the 1997 Determination and finding Markvardsen not disabled for the February 2005 Application. AR 37-45. On November 24, 2008, Markvardsen appealed the ALJ's decision to the Appeals Council. AR 99-100. On October 27, 2009, the Appeals Council remanded the case for a new hearing because it could not locate the recordings of the June 17 and August 7, 2008 hearings. AR 46-49. After holding another hearing on January 25, 2011, the ALJ issued a decision on January 28, 2011 ("2011 Determination"), denying both Markvardsen's request to reopen the 1997 Determination and denying his February 2005 Application. AR 19-27, 609-33. Markvardsen appealed the ALJ's 2011 Determination decision to the Appeals Council. AR 14-15. On April 20, 2012, the Appeals Council denied the request for review, making the ALJ's decision the final decision of the Commissioner. AR 11-13. Markvardsen now seeks judicial review of that decision.

B. The Sequential Analysis

A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. § 404.1520 (DIB); 20 C.F.R. § 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing "substantial gainful activity?" 20 C.F.R. §§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i); ...

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