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Pappe v. Colvin

United States District Court, D. Oregon

September 26, 2014

JAIME D. PAPPE, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

Marlene Yesquen, Black, Chapman, Webber & Stevens, Medford, OR. Attorney for plaintiff

S. Amanda Marshall, United States Attorney, Ronald K. Silver Assistant United States Attorney, Portland, OR.

Gerald J. Hill, Special Assistant United States Attorney, Social Security Administration Seattle, WA. Attorneys for defendant


ANN AIKEN, District Judge.

Plaintiff brings this action pursuant to the Social Security Act, 42 U.S.C. § 405(g) (Act) to obtain judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying her application for disability insurance benefits (DIB) and supplemental security income (SSI) under the Act. The decision of the Commissioner is affirmed and this case is dismissed.


On November 18, 2009, plaintiff applied for SSI and DIB, as well as an updated application for SSI on September 29, 2010. Tr. 138-150, 165-170. Her applications were denied initially and upon reconsideration. Tr. 76-79, 80-82. On December 28, 2011, a hearing was held before an Administrative Law Judge (ALJ). Tr. 41-73. On March 30, 2012, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 21-40. On July 24, 2013, the Appeals Council denied plaintiff's request for review. Tr. 1-6. Subsequently, plaintiff filed a complaint with this Court.

Born on May 3, 1963, plaintiff was 45 years old on the alleged disability onset date. Tr. 32. Plaintiff has a high-school education and past relevant work experience as a dental assistant. Tr. 190, 202-209. Plaintiff alleges disability since August 6, 2008, due to depression, uncontrolled diabetes, fibromyalgia, and severe panic and anxiety attacks. Tr. 203.


The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record Hammock v. Bowen , 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion:" Richardson v. Perales , 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler , 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005).

The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler , 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the 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 person is disabled. Bowen v. Yuckert , 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502, 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." Yuckert , 482 U.S. at 140; 20 C.F.R. § 404.1520(b), 416.920(b). If so, the claimant is not disabled.

At step two, the Commissioner considers 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 the claimant does not have a severe impairment, she is not disabled.

At step three, the Commissioner evaluates whether the claimant's impairments, either 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 140-41; 20 C.F.R. § 404.1520(d), 416.920(d). If so, the claimant is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert , 482 U.S. at 141.

At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. § 404.1520(f), 416.920(f). If the claimant can work, she is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner.

At step five, the Commissioner must determine that the claimant can perform other work that exists in significant numbers in the national and local economy. Yuckert , 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g), 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566, 416.966.


At step one of the five step sequential evaluation process outlined above, the ALJ found that plaintiff had not engaged in "substantial gainful activity since August 6, 2008, the alleged onset date." Tr. 26. At step two, the ALJ found that plaintiff had the following severe impairments: diabetes mellitus I with peripheral neuropathy, migraines, mild depression with sleep disruption, anxiety with panic attacks, and cannabis dependency, allegedly in remission since March 2010. Tr. 27. At step three, the ALJ found that plaintiff's impairments did not meet or medically equal the requirements of a listed impairment. Tr. 27.

Because plaintiff was not presumptively disabled at step three, the ALJ evaluated how plaintiff's impairments effected her ability to work. The ALJ resolved that plaintiff had the residual functional capacity (RFC) to:

perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b) except lift/carry up to 20 pounds occasionally and "10 pounds frequently with standing/walking up to 6 hours and sitting for up to 6 hours cumulatively in an 8-hour workday. The [plaintiff] may frequently perform complex technical work but may perform a full range of simple, routine and repetitive work with frequent contact with supervisors and the general public at a stress level of 4 on a scale of 1 to 10 with 1 being, by example, the work of a night dish washer, and 10 being, by example, the work of an air traffic controller as these occupations are generally performed in the national economy.

Tr. 28-29.

At step four, the ALJ resolved that plaintiff is unable to perform her past relevant work. Tr. 32. At step five, the ALJ determined that considering plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that plaintiff can perform, such as an usher, marker, or order caller. Tr. 33. The ALJ concluded that plaintiff was not disabled under the Act. Tr. 33-34.


Plaintiff argues that the ALJ erred by: 1) rejecting the medical opinion evidence of treating physicians, Drs. Shonerd and Williamson; 2) rejecting her subjective symptom testimony; 3) substituting his own opinion for that of plaintiff's treating and examining medical sources of record and making his own independent findings and speculative inferences from the medical evidence; 4) basing his decision on the incomplete opinion of the vocational expert (VE); and 5) failing to obtain responses from the VE to the ...

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