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Whaley v. Colvin

United States District Court, D. Oregon, Medford Division

July 9, 2014

DEBRAH J. WHALEY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

OPINION AND ORDER

ANCER L. HAGGERTY, District Judge.

Plaintiff Debrah J. Whaley seeks judicial review of a final decision by the Acting Commissioner of the Social Security Administration denying her application for Disability Insurance Benefits (DIB). This court has jurisdiction to review the Acting Commissioner's decision under 42 U.S.C. § 405(g). After reviewing the record, this court concludes that the Acting Commissioner's decision must be affirmed.

STANDARDS

A claimant is considered "disabled" under the Social Security Act if: (1) he or she is unable to engage in any substantial gainful activity (SGA) "by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months, " and (2) the impairment is "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Hill v. Astrue, 688 F.3d 1144, 1149-50 (9th Cir. 2012) (citing 42 U.S.C. § 1382c(a)(3); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)); 42 U.S.C. § 423(d)(l)(A).

The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for benefits. 20 C.F.R. §§ 404. l520(a), 416.920(a). In steps one through four, the Commissioner must determine whether the claimant (1) has not engaged in SGA since his or her alleged disability onset date; (2) suffers from severe physical or mental impairments; (3) has severe impairments that meet or medically equal any of the listed impairments that automatically qualify as disabilities under the Social Security Act; and (4) has a residual functional capacity (RFC) that prevents the claimant from performing his or her past relevant work. Id. An RFC is the most an individual can do in a work setting despite the total limiting effects of all his or her impairments. 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l), and Social Security Ruling (SSR) 96-Sp. The claimant bears the burden of proof in the first four steps to establish his or her disability.

At the fifth step, however, the burden shifts to the Commissioner to show that jobs exist in a significant number in the national economy that the claimant can perform given his or her RFC, age, education, and work experience. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir. 1996). If the Commissioner cannot meet this burden, the claimant is considered disabled for purposes of awarding benefits. 20 C.F.R. §§ 404.1520(f)(1), 416.920(a). On the other hand, if the Commissioner can meet its burden, the claimant is deemed to be not disabled for purposes of determining benefits eligibility. Id.

The Commissioner's decision must be affirmed if it is based on the proper legal standards and its findings are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett, 180 F.3d at 1097; Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Substantial evidence is more than a scintilla but less than a preponderance; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Sandgathe v. Chafer, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).

When reviewing the decision, the court must weigh all of the evidence, whether it supports or detracts from the Commissioner's decision. Tackett, 180 F.3d at 1098. The Commissioner, not the reviewing court, must resolve conflicts in the evidence, and the Commissioner's decision must be upheld in instances where the evidence supports either outcome. Reddickv. Charter, 157 F.3d 715, 720-21 (9th Cir. 1998). If, however, the Commissioner did not apply the proper legal standards in weighing the evidence and making the decision, the decision must be set aside. Id. at 720.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff was born in 1951 and was an individual of advanced age on her disability onset date. She holds a Master's Degree in Education and has past relevant work as a director and teacher in an alternative education program. Plaintiff protectively filed her application for DIB on August 14, 2009, alleging that she has been disabled since June 11, 2009. The claim was denied initially and upon reconsideration. At plaintiffs request, an Administrative Law Judge (ALJ) conducted a hearing on December 12, 2011. The ALJ heard testimony from plaintiff, who was represented by counsel, as well as an independent vocational expert (VE).

On January 25, 2012, the ALJ issued a decision finding that plaintiff was not disabled under the Act. At step one of the sequential analysis, the ALJ found that plaintiff had not engaged in SGA since June 11, 2009, her alleged onset date. Tr. 14.[1] At step two, the ALJ found that plaintiff suffers from the following medically determinable severe impairments: chronic cough related to acid reflux, gastro esophageal reflux disease, diabetes mellitus, hypothyroidism, and obesity. Tr. 15. After considering plaintiffs severe and non-severe impairments, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meets or medically equals a listed impairmment in 20 C.F.R. Part 404, Subpart P, Appendix I. Tr. 15. After considering the entire record, the ALJ found that plaintiff has the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) except: she must avoid concentrated exposures to temperature extremes, wetness, and humidity; she must avoid moderate exposure to respiratory irritants; and she would be off task up to ten percent of the workday due to chronic coughing. Tr. 15. Based on plaintiffs RFC and the testimony of the VE, the ALJ found that plaintiff is capable of performing past relevant work as a Director of Special Education. The ALJ found that this work does not require the performance of work-related activities precluded by plaintiffs RFC. Tr. 18. In the alternative, the ALJ relied on the testimony of the VE to determine that plaintiff has acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy, such as information clerk, appointment clerk, and order clerk. Therefore, the ALJ concluded that plaintiff is not disabled. Tr. 20.

On June 25, 2013, the Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Acting Commissioner. Plaintiff subsequently initiated this action seeking judicial review.

DISCUSSION

In plaintiff's Opening Brief, she asserts that the Acting Commissioner's decision should be remanded because (1) the Appeals Council improperly excluded new and material evidence; (2) the ALJ improperly assessed medical evidence; (3) the ALJ improperly rejected plaintiff's subjective symptom testimony; and (4) the ALJ improperly ...


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