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Malitz v. Colvin

United States District Court, D. Oregon

September 22, 2014

WANDA L. MALITZ, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Phillip W. Studenberg, Attorney at Law, Klamath Falls, Oregon, Attorney for Plaintiff.

S. Amanda Marshall, UNITED STATES ATTORNEY District of Oregon, Ronald K. Silver, ASSISTANT UNITED STATES ATTORNEY, Portland, Oregon, Heather L. Griffith, SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration, Seattle, Washington, Attorney for Defendant.


MARCO A. HERNANDEZ, District Judge.

Plaintiff Wanda Malitz brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). I affirm the Commissioner's decision.


Plaintiff applied for DIB on September 28, 2009, alleging an onset date of January 31, 2002. Tr. 160-66. Her application was denied initially and on reconsideration. Tr. 78-81, 84-86.

On January 19, 2012, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 32-38. The hearing was rescheduled because the ALJ determined he wanted the testimony of a medical expert psychologist. Tr. 36. On May 8, 2012, Plaintiff appeared, with counsel, for the rescheduled hearing before the ALJ. Tr. 39-72. On June 6, 2012, the ALJ found Plaintiff not disabled. Tr. 13-31. The Appeals Council denied review. Tr. 1-6.


Plaintiff alleges disability based on being bipolar and manic depressive, as well as having panic attacks and bad headaches. Tr. 216. She also indicated that she "pass[es] out." Id . At the time of the May 8, 2012 hearing, she was forty-three years old. Tr. 62. She has two years of college with an associate's degree in business. Tr. 58. 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 alleged onset date through her date of last insured of December 31, 2009. Tr. 18-19. Next, at step two, the ALJ determined that Plaintiff has the following medically determinable impairments, but that none of them are severe, either singly or in combination: (1) morbid obesity; (2) hypothyroidism; (3) hypertension; (4) mood disorder, NOS, with bipolar features; (5) post-traumatic stress disorder (PTSD); (6) psychological reaction to physical sensation; and (7) borderline personality disorder. Tr. 19-20.

Having found that Plaintiff had no severe impairments at step two, the ALJ could have concluded his decision at that point. However, the ALJ made alternative findings for the remainder of the sequential evaluation process. He assessed Plaintiff with the following RFC: she can perform light work as defined in 20 C.F.R. § 404.1567(b), except she cannot frequently bend, stoop, squat, or kneel due to her obesity exacerbating her other physical impairments, and she is unable to work with the public. Tr. 26. With this RFC, the ALJ determined that Plaintiff would be able to perform jobs that exist in significant numbers in the economy such as housekeeping cleaner, sewing machine operator, and paint spray inspector. Tr. 27. 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 appears to raise several issues regarding the ALJ's decision, but her opening memorandum so poorly identifies and articulates her arguments that Defendant contends she has waived them. Although I agree with Defendant that Plaintiff raises several contentions without explaining her reasoning[1], Defendant has alternatively attempted to identify the arguments with more specificity ...

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