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Rasmussen v. Commissioner of Social Security

United States District Court, D. Oregon

September 30, 2014


Phillip W. Studenberg, Attorney at Law, P.C., Klamath Falls, OR, Attorney for Plaintiff.

S. Amanda Marshall, United States Attorney, District of Oregon, Ronald K. Silver, Assistant United States Attorney, Portland, OR, Leisa A. Wolf, Special Assistant United States Attorney, Office of the General Counsel Social Security Administration Seattle, WA, Attorneys for Defendant.


GARR M. KING, District Judge.

Plaintiff Ernest Rasmussen brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner denying plaintiff's application for a period of disability and disability insurance benefits ("DIB"). I reverse the decision of the Commissioner and remand for further proceedings.


Rasmussen filed an application for DIB on February 25, 2010, alleging disability beginning August 11, 2008. The application was denied initially and upon reconsideration. After a timely request for a hearing, Rasmussen, represented by counsel, appeared and testified before an Administrative Law Judge ("ALJ") on April 4, 2012.

On July 25, 2012, the ALJ issued a decision finding that Rasmussen was not disabled within the meaning of the Act and therefore not entitled to benefits. This decision became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ on October 9, 2013.


The Social Security Act (the "Act") provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security income benefits may be available to individuals who are age 65 or over, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a).

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 cause death or to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will be determined to be disabled only if his physical or mental impairments are 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. 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).

The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for either DIB or SSI due to disability. The evaluation is carried out by the ALJ. The claimant has the burden of proof on the first four steps. Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ determines whether the claimant is engaged in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b) and 416.920(b). If the claimant is engaged in such activity, disability benefits are denied. Otherwise, the ALJ proceeds to step two and determines whether the claimant has a medically severe impairment or combination of impairments. A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]" 20 C.F.R. §§ 404.1520(c) and 416.920(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied.

If the impairment is severe, the ALJ proceeds to the third step to determine whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d) and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant performed in the past. If the claimant is able to perform work she performed in the past, a finding of "not disabled" is made and disability benefits are denied. 20 C.F.R. §§ 404.1520(f) and 416.920(f).

If the claimant is unable to perform past work, the ALJ proceeds to the fifth and final step to determine if in light of his age, education, and work experience the claimant can perform other work in the national economy. The burden shifts to the Commissioner to show what gainful work activities are within the claimant's capabilities. Parra , 481 F.3d at 746. The claimant is entitled to disability benefits only if he is not able to perform other work. 20 C.F.R. §§ 404.1520(g) and 416.920(g).


The court must affirm a denial of benefits if the denial is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue , 674 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" and is more than a "mere scintilla" of the evidence but less than a preponderance. Id . (internal quotation omitted). The court must uphold the ALJ's findings if they "are supported by inferences reasonably drawn from the record[, ]" even if the evidence is susceptible to multiple rational interpretations. Id.


The ALJ found Rasmussen has the following severe impairments: degenerative disc disease of the lumbar spine; status post L4-5 and L5-S1 decompression and fusion; and degenerative disc disease of the cervical spine with spinal stenosis. The ALJ found that these impairments, either singly or in combination, did not meet or medically equal the requirements of any of the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1. The ALJ concluded Rasmussen has the capacity to perform sedentary work. Specifically, he can occasionally lift and/or carry up to 20 pounds, and frequently lift and/or carry up to 10 pounds; he can stand and/or walk for two hours in an eight-hour day; he can sit for six hours in an eight-hour day; he must be allowed to use a cane for prolonged walking; he can only occasionally climb, stoop, kneel, balance, crawl or crouch; and he should avoid exposure to cold, wet and hazardous conditions. Given this residual functional capacity ("RFC"), Rasmussen could perform his past relevant work as a graphic designer, system specialist, and a technical support representative.


Rasmussen, who has an eleventh-grade education and a GED, worked in a mill and then as a cabinet-maker. He hurt his back in 1993 and was retrained in 1996 to perform information technology and graphic artist work. With the exception of 2003 and 2004, Rasmussen worked steadily until his back pain became intolerable and he underwent surgery-decompressive laminectomies and arthrodesis L4-5 and L5-S1-on September 11, 2008. At that time, Karl C. Wenner, M.D., reported,

Mr. Rasmussen is a 40-year-old gentleman who has suffered with significant back pain for a prolonged period of time. He was followed and found to have significant degenerative change in his lumbar spine. Conservative measures including aggressive physical therapy, analgesics, etc. were instituted. This did not help and over our course of following him he developed increasing spinal stenosis symptoms. His MR scan did show stenosis of L4-5 and L5-S1. Because of the progression of his stenosis and the failure of conservative measures, he was felt to be a candidate for surgical intervention.
Tr. 285.

Rasmussen had "good relief of his pain" following the surgery. Id .; see also Tr. 302 (reported on October 24 that his pain is "markedly improved"). Dr. Wenner opined that Rasmussen could return to "[f]ull duty without limitations" by November 3. On November 7, Rasmussen did report that, just within the last few days, he had experienced significant back pain. He received an injection and a prescription for Valium. A little more than one month later, on December 19, 2008, Rasmussen once again reported being "very pleased with the results of his fusion, really does not have a lot of complaints." Tr. 299. Sometime in December, two weeks after he returned to work, he was laid off; he explained to one examining doctor that he was laid off because he was "unable to sit at his desk for the requisite amount of time necessary to complete his task[.]" Tr. 435; see also Tr. 34 (testified he was having trouble "[s]itting and getting things done on time"). His company had laid off 20 other employees earlier in the year when the economy collapsed.

Rasmussen obtained unemployment benefits for two years and looked for work during that time. Prospective employers told him that because he had not been well enough to perform work as a computer graphic artist, he would not be suitable for any available position.

Rasmussen established care with Klamath Open Door Family Practice in November 2009. Terry Jones, P.A., noted Rasmussen had not taken any pain medications for nine months; he was taking ibuprofen which helped some. Rasmussen was thinking about applying for disability, but was not sure he qualified. He was able to walk and climb stairs, but he had a used a cane for the past five years. Rasmussen told Jones he had been a graphic artist for Herald News but had been laid off; he felt he could do his job if he were employed. Jones discussed with Rasmussen "how he may have pain and walk with a cane but his rom [range of motion] and functionality were still very high, pt agreed. This does not qualify for disability at this time, pt agreed." Tr. 376-77. Jones recommended heat, stretching, core exercises, Motrin and Flexeril as needed.

In March 2010, Rasmussen returned to Jones. At that time, he was still on unemployment and had taken no pain medication other than ibuprofen, which was not sufficiently relieving his pain. He reported being able to walk and climb stairs so long as he used his cane. He thought he could work. Jones assessed "significant and diffuse bilateral lumbar and cervical tenderness extending down into the paraspinal" and "walks with antalgic gait." Tr. 325. Jones provided him with Vicodin. At his one-month follow up appointment, Rasmussen reported "doing OK" but asked for an increased dose that he could take less frequently.

Charles Bury, M.D., examined Rasmussen on April 26, 2010. Rasmussen said he could stand for 20 minutes, sit for 15 minutes and walk for 30 minutes. Dr. Bury noted, however, that Rasmussen "appeared to be comfortable sitting longer than 30 minutes[.]" Tr. 333. Rasmussen walked with an uneven gait, but could lift and carry 40 pounds. ...

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