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Herber v. Colvin

United States District Court, D. Oregon, Portland Division

September 29, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROBERT E. JONES, District Judge.

Trisha Herber appeals the Commissioner's partially favorable decision denying in part her application for disability insurance benefits under Title II of the Social Security Act, This court has jurisdiction under 42 U.S.C. § 405(g). The Commissioner's decision is AFFIRMED.


Herber alleged disability beginning October 6, 2007, when she suffered a hemorrhagic stroke. Admin. R. 271-72. Herber alleged disability due to memory loss, limitations in executive functioning, depression, and difficulty concentrating and remembering instructions, Admin. R. 30, 161, 190, 208. After spending several weeks in hospitals, Herber was discharged and underwent outpatient rehabilitation. Admin. R. 505, 525. Herber alleged that she could not perform her past work as an executive vice president or any other work due to the ongoing effects offer impairments.

The Administrative Law Judge ("ALP) applied the five-step disability determination process outlined in 20 C.F.R. § 404A 520. Admin. R. 26-27. The ALJ determined that between October 6, 2007, and December 31, 2010, Herber was unable to work, primarily because she lacked the ability to perform simple, routine tasks with consistency. Admin. R. 30. Relying on the testimony of a vocational expert, the ALJ concluded that no jobs existed in the national economy that Herber could perform while she had that limitation. The ALJ therefore concluded that Herber was disabled for the purposes of the Social Security Act until December 31, 2010. Admin, R. 34.

The ALJ found that Herber's medical condition steadily improved and by January 1, 2011, she possessed the residual functional capacity ("RFC") to perform a range of medium work involving simple, routine tasks and limited interactions with others. Admin. R. 36. The vocational expert testified that a person with Herber's RFC could perform unskilled, light occupations such as courier and office helper which represented hundreds of thousands ofjobs in the national economy. Admin. R. 87. Based on the vocational expert's testimony, the ALJ found that, by January 1, 2011, Herber was not disabled within the meaning of the Social Security Act. Admin. R. 40-41.


The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings of fact are supported by substantial evidence. 42 U.S.C. § 405(g); Tommasetti Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion. Richardson v. Peraks, 402 U.S. 389, 401 (1971). Substantial evidence may be less than a preponderance of the evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Under this standard, the court must consider the record as a whole, and uphold the Commissioner's factual findings that are supported by inferences reasonably drawn from the evidence even if another interpretation also is rational. Robbins, 466 F.3d at 882; Batson v. Comm'l. of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).


I. Claims of Error

Herber claims the ALT improperly found that her subjective statements lacked credibility and assigned insufficient weight to the opinion of examining physician Sharon Labs, Ph.D. Herber also contends the Appeals Council failed to account for evidence she produced after the AL's decision.

II. Credibility Determination

Herber alleged she could not work due to continued memory loss, depression, and limitations in executive functioning and concentration. She testified that she could not work on a full time basis because she would become tired and had poor memory, planning, and organizational skills. Admin. R. 37, 63.

The ALJ found that Herber's impairments could reasonably be expected to produce the symptoms she alleged but that she lacked credibility regarding the extent to which her symptoms continued to limit her after December 2010. Admin. R. 36-37. The ALJ accepted that Herber's ability to work continued to be affected by a cognitive disorder related to her subarachnoid hemorrhage and by an adjustment disorder. Admin. R. 29, 34. She discounted the credibility ...

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