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Perry v. Colvin

United States District Court, D. Oregon

July 1, 2014

MICHAEL ROSS PERRY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

FINDINGS AND RECOMMENDATION

PAUL PAPAK, Magistrate Judge.

Plaintiff Michael Ross Perry filed this action on August 20, 2012, seeking judicial review of the Commissioner of Social Security's final decision denying his application for supplemental security income ("SSI") under Title XVI of the Social Security Act (the "Act"). This court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). I have considered all of the parties' briefs and all of the evidence in the administrative record. For the reasons set forth below, the Commissioner's decision should be reversed and the matter should be remanded for further proceedings.

PROCEDURAL BACKGROUND

Perry protectively filed for SSI on May 1, 2007, alleging disability due to dyslexia, clronic anxiety, degenerative disc disease, left arm injury, speech impediment with stuttering, panic attacks, and learning disability. After his application was initially denied and upon reconsideration, Perry requested a hearing before an administrative law judge ("ALJ"). On July 21, 2009, ALJ Deborah J. Van Vleck held a video hearing, during which Perry, Peny's mother, and a vocational expert ("VE") testified. Perry was represented by counsel at the hearing. On March 19, 2010, the ALJ issued a decision finding Perry not disabled within the meaning of the Act. After the Appeals Council denied review, Perry filed a complaint in this court.

DISABILITY ANALYSIS FRAMEWORK

To establish disability within the meaning of the Act, a 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 claimant has made the requisite demonstration. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. § 416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

At the first step, the ALJ considers the claimant's work activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. § 416.920(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will proceed to the second step.

At the second step, the ALJ considers the medical severity of the claimant's impairments. See Bowen, 482 U.S. at 140-41; see also 20 C.F.R. § 416.920(a)(4)(ii). An impairment is "severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 20 C.F.R. § 416.920(c). The ability to perform basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 416.921(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or do not meet the duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(ii), 416.920(c). Nevertheless, it is well established that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen, 482 U.S. at 153-54). "An impairment or combination of impairments can be found not severe' only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual[']s ability to work." Id (quoting SSR No. 85-28).

If the claimant's impairments are severe, the evaluation will proceed to the third step, at which the ALJ determines whether the claimant's impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d).

If the claimant's impairments are not equivalent to one of the enumerated impairments, between the third and the fourth steps the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all of the relevant medical and other evidence in the claimant's case record. See 20 C.P.R.§ 416.920(e). The RFC is an estimate of the claimant's capacity to perform sustained, work-related physical and/or mental activities on a regular and continuing basis, [1] despite the limitations imposed by the claimant's impairments. See 20 C.P.R. § 416.945(a); see also SSR No. 96-Sp.

At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.P.R.§ 416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.P.R. §§ 416.920(a)(4)(iv), 416.920(t). In the event the claimant is no longer capable of performing his or her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden of proof shifts, for the first time, to the Commissioner.

At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's age, education, and work experience to determine whether a person with those characteristics and RFC could perform any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142; see also 20 C.P.R.§§ 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner meets her burden to demonstrate the existence in significant numbers in the national economy of jobs capable of being performed by a person with the RFC assessed by the ALJ between the third and fourth steps of the five-step process, the claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.P.R.§§ 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits if the Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.P.R.§§ 416.920(a)(4)(v), 416.920(g).

SUMMARY OF ALJ FINDINGS

At the first step of the five-step sequential evaluation process, the ALJ found that Perry had not engaged in substantial gainful activity since his application date of May 1, 2007. Tr. 30.[2] At the second step, the ALJ found that Perry had the following severe impairments: generalized anxiety disorder with stuttering, dyslexia with reading disorder, lumbar degenerative disc disease, and status post open reduction and internal fixation placement in the left arm. Id. Because Perry's impairments were deemed severe, the ALJ properly proceeded to the third step of the analysis. Id.

At the third step, the ALJ found that none of Perry's impairments met or equaled any of the impairments enumerated in 20 C.P.R. § 404, subpt. P, app. 1. Tr. 30-31. The ALJ therefore conducted an assessment of Perry's RFC. The ALJ found that, during the relevant adjudication period, Perry could:

perform sedentary work as defined in 20 CFR 416.967(a) except that [he] is never able to: climb ladders/ropes/scaffolds, work with the public, or perform work that requires reading or writing; but, he can perform the following occasionally: climbing ramps and stairs, stooping, and kneeling; and he can balance, crouch, crawl, handle, and finger frequently. [Perry] has no limitations in the ability to feel. He must avoid concentrated exposure to extreme cold and hazardous conditions. He is limited to tasks that can be learned in less than 30 days with few changes. He is limited to occasional structured contact with coworkers and supervisors.

Tr. 32.

At the fourth step of the five-step process, the ALJ found that Perry had no past relevant work. Tr. 36. At step five, the ALJ determined that a person with Perry's functional limitations could perform jobs that exist in significant numbers in the national economy, such as cigar-head piercer, buckler and lacer, and label-cutter. Tr. ...


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