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Skelton v. Commissioner of Social Security

United States District Court, D. Oregon

August 18, 2014

KERRY M. SKELTON, Plaintiff,

Alan Stuart Graf, P.C., ALAN GRAF, ATTORNEY AT LAW Floyd, Virginia. Attorney for Plaintiff

S. Amanda Marshall UNITED STATES ATTORNEY District of Oregon Ronald K. Silver ASSISTANT UNITED STATES ATTORNEY Portland, Oregon.

John C. Lamont SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration Seattle, Washington. Attorneys for Defendant.


MARCO A. HERNANDEZ, District Judge.

Plaintiff Kerry Skelton brings this action seeking judicial review of the Commissioner's final decision to deny supplemental security income (SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I affirm the Commissioner's decision in part and reverse it in part.


Plaintiff applied for SSI on December 22, 2008, alleging an onset date of December 1, 2008. Tr. 149-52. Her application was denied initially and on reconsideration. Tr. 93-99, 103-06.

On February 16, 2011, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 44-47. The hearing was continued until June 15, 2011 for receipt of additional medical records. Id .; Tr. 49-89. On October 14, 2011, the ALJ found Plaintiff not disabled. Tr. 10-28. The Appeals Council denied review. Tr. 1-6.


Plaintiff alleges disability based on having fibromyalgia, depression, post-traumatic stress disorder (PTSD), and chronic pain. Tr. 157. She contends that she has difficulty sitting or standing for very long because it hurts her back, neck, and hips. Id . Additionally, she does not "deal well with crowds of people" because she has panic attacks. Id . Her depression is sometimes so severe that she cannot get out of bed. Id.

At the time of the hearing, she was forty years old. Tr. 56. She has a GED and no past relevant work experience. Tr. 22, 56. Because the parties are familiar with the medical and other evidence of record, I refer to any additional relevant facts necessary to my decision in the discussion section below.


A claimant is disabled if 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), 1382c(3)(a).

Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r , 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert , 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In 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. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

In step three, the Commissioner determines whether plaintiff's impairments, 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 activity." Yuckert , 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert , 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert , 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.


At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her December 22, 2008 application date. Tr. 15. Next, at step two, the ALJ determined that Plaintiff has severe impairments of major depressive disorder, PTSD, status post cervical spine fusion at C6-C7, status post right rotator cuff repair, right brachial plexitis, fibromyalgia, a history of methamphetamine abuse, and remote foot/ankle fracture. Id . At step three, the ALJ found that Plaintiff's impairments did not meet or equal, either singly or in combination, a listed impairment. Id.

At step four, the ALJ concluded that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. 416.967(b), crawl and climb ladders, ropes, and ladders no more than occasionally, perform other postural activities frequently, but that she can reach overhead with her right upper extremity only occasionally. Tr. 17. She is limited to performing tasks requiring no more than four steps and can have no more than occasional interaction with the public. Id . With no past relevant work to assess at step four, the ALJ determined at step five that with this RFC, Plaintiff is able to perform jobs that exist in significant numbers in the economy such as bottle packer, marker II, and garment sorter. Tr. 23. Thus, the ALJ determined that Plaintiff is not disabled. Id.


A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Vasquez v. Astrue , 572 F.3d 586, 591 (9th Cir. 2009). "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 . (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id .; Lingenfelter v. Astrue , 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez , 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue , 486 F.3d 1149, 1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted).


Plaintiff contends that the ALJ erred by finding her not credible, by improperly rejecting treating physicians' opinions, and by relying on vocational expert testimony which conflicts with the Dictionary of ...

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