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Nees v. Commissioner Social Security Administration

United States District Court, D. Oregon

May 19, 2014

CAROLANN M. NEES, Plaintiff,

KATHRYN TASSINARI, DREW L. JOHNSON, Eugene, OR, Attorneys for Plaintiff.

S. AMANDA MARSHALL, United States Attorney, District of Oregon, ADRIAN L. BROWN, Assistant United States Attorney, Portland, OR, OURTNEY M. GARCIA, MATHEW W. PILE, Social Security Administration Office of the General Counsel, Seattle, WA, Attorneys for Defendant.


MALCOLM F. MARSH, District Judge.

Plaintiff Carolann M. Nees seeks judicial review of the final decision of the Commissioner of Social Security denying her application for Supplemental Security Income (SSI) disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons that follow, I reverse and remand the final decision of the Commissioner for further administrative proceedings.


Plaintiff protectively filed an application for SSI on February 3, 2009, with an amended onset of disability as of January 12, 2008. Tr. 185-91. The application was denied initially and on reconsideration. A hearing was held before an ALJ on February 10, 2011, at which plaintiff appeared with her attorney and testified, as did Vocational Expert Jeffrey Tittelfitz. Tr. 40. On March 17, 2011, the ALJ issued an unfavorable decision, finding plaintiff was not disabled under the Act. On November 15, 2012, the Appeals Council denied plaintiff's request for review, thereby making the ALJ's decision the final decision of the Commissioner for purposes of review.[1]


Plaintiff was born in 1961 and was 49 years old on the date of the hearing. Plaintiff has a GED and six years of community college education, with no degree. Plaintiff has past relevant work as a childcare monitor, a flagger, a laborer, a truck driver, and an industrial cleaner. Plaintiff was involved in two motor vehicle accidents occurring in 1982 and 1997.


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. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Valentine v. Commissioner Soc. Sec. Admin. , 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel , 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Andrews v. Shalala , 53 F.3d 1035, 1043 (9th Cir. 1995).

At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since her application date. At step two, the ALJ found that plaintiff had the following severe impairments: obesity, degenerative disc disease of the cervical and lumbar spine, and tension headaches. At step three, the ALJ found that plaintiff's impairments, or combination of impairments did not meet or medically equal a listed impairment. The ALJ assessed plaintiff with a residual functional capacity to perform light work, except that plaintiff can lift 20 pounds occasionally and lift 10 pounds frequently; she can stand/walk six hours and sit six hours but needs brief changes of position which will not exceed five minutes each hour; she can frequently balance, stoop, crouch and crawl; she can occasionally climb stairs, ramps, ladders and scaffolds; she can frequently reach in all directions and frequently handle and finger with both hands; she must avoid concentrated exposure to workplace hazards because of her use of medical marijuana.

At step four, the ALJ found plaintiff is unable to perform her past relevant work. At step five, the ALJ concluded that considering plaintiff's age, education, work experience, and residual functional capacity, jobs exist in significant numbers in the national economy that claimant can perform, such as bottle line attendant, office, helper, or garment sorter. Accordingly, the ALJ concluded that plaintiff is not disabled within the meaning of the Act.


On appeal to this court, plaintiff contends the following errors were committed: (1) the ALJ improperly assessed plaintiff's credibility; (2) the ALJ failed to properly evaluate the opinion of her treating physician, Martin Klos, M.D.; (3) the ALJ failed to develop the record concerning her psychological impairments; and (4) the ALJ failed to identify "other work" plaintiff could perform at step five.


The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Andrews , 53 F.3d at 1039. "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id .; Valentine , 574 F.3d at 690. The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler , 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v. Commissioner Soc. Sec. Admin. , 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews , 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari , 253 F.3d 1152, 1156 (9th Cir. 2001).


I. Plaintiff's ...

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