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Lagassey v. Commissioner Social Security Administration

United States District Court, D. Oregon

October 29, 2014

LYNN MARIE CARY LAGASSEY, Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.

LISA R. J. PORTER, KP Law, P.C., Lake Oswego, Oregon, Attorney for Plaintiff.

S. AMANDA MARSHALL, United States Attorney, ADRIAN L. BROWN, Assistant United States Attorney, Portland, Oregon, JORDAN D. GODDARD, Social Security Administration, Office of the General Counsel, Seattle, Washington, Attorneys for Defendant.

OPINION AND ORDER

MALCOLM F. MARSH, District Judge.

Plaintiff, Lynn Marie Cary LaGassey, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for disability insurance benefits (DIB) under Title II of the Social Security Act (the · Act) and supplemental security income (SSI) disability benefits under Title XVI of the Act. See 42 U.S.C. §§ 401-434, 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, I affirm the final decision of the Commissioner.

PROCEDURAL BACKGROUND

Plaintiff protectively filed the instant applications for DIB and SSI on October 25, 2006, alleging disability due to breast cancer, short-term memory loss, and joint pain. Tr. 189. Her applications were denied initially and upon reconsideration. An Administrative Law Judge (ALJ) held hearings on June 29, 2009, and September 9, 2009, at which Plaintiff was present and represented by counsel.[1] On September 22, 2009, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. After the Appeals Council declined review of the ALJ's decision, Plaintiff timely filed a Complaint in this Court.

On August 13, 2012, this Court reversed the ALJ's decision and remanded to the Commissioner for further proceedings. Cary-LaGassey v. Comm'r Soc. Sec. Admin., No. 3:11-cv-00395-ST (#27), 2012 WL 3314087 (D. Or. Jul. 20, 2012), adopted.Qy 2012 WL 3309713 (D. Or. Aug. 13; 2012). Accordingly, on May 13, 2013, the ALJ held another hearing at which Plaintiff was represented by counsel and testified. On June 11, 2013, the ALJ again issued a decision finding Plaintiff not disabled within the meaning of the Act. After the Appeals Council declined review, Plaintiff instituted this appeal.

FACTUAL BACKGROUND

Born on January 10, 1958, Plaintiff was 47 years-old on the alleged onset date of disability and 55 years-old on the date of the hearing on remand. Tr. 184. Plaintiff has a high-school education with some college, and past relevant work as a Radio Producer. Tr. 196.

Plaintiff alleges her conditions became disabling on September 1, 2005. Tr. 184. Plaintiff testified about her conditions and functional limitations at hearings on June 29, 2009, and May 13, 2013. In addition to her hearing testimony, Plaintiff submitted an Adult Function Report. Tr. 241-48.

George Shinbo, Plaintiff's friend, also testified at the June 29, 2009, hearing and submitted a letter. Tr. 1148-53, 1353. Thomas Blacklidge submitted a Witness Statement dated June 24, 2009. Tr. 727-34. Max LaGassey, Plaintiff's son, also submitted a letter describing his mother's limitations. Tr. 1352. Patricia Ayzerman, a vocational expert (VE), was also present throughout the May 13, 2013, hearing and testified.

THE ALJ'S DISABILITY ANALYSIS

The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert , 482 U.S. 137' 140-42 (1987); 20 C.F.R. §§ 404.1520(a) (4) (i)-(v), 416. 920 (a) (4) (i)-(v). Each step is potentially dispositive. The claimant bears the burden of proof at Steps One through Four. Tackett v. Apfel , 180 F.3d 1094, 1098 (9th Cir. 1999). The burden shifts to the Commissioner at Step Five to show that a significant number of jobs exist in the national economy that the claimant can perform. See Yuckert , 482 U.S. at 141-42; Tackett , 180 F.3d at 1098.

At Step One the ALJ determined that Plaintiff has not engaged in substantial gainful activity since the alleged onset date, September 1, 2005. See 20 C.F.R. §§ 404.1571 et seq., 416.971 et seq.; Tr. 1090.

At Step Two the ALJ found Plaintiff's status post lumpectomy with radiation, depressive disorder, and "substance dependency" were severe impairments, and Plaintiff's anxiety disorder was a non-severe impairment. See 20 C.F.R. §§ 404.1520(c), 416.920(c); Tr. 1090.

At Step Three the ALJ determined Plaintiff does not have an impairment or combination of impairments that meet or medically equal any listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 1090-91.

The ALJ found Plaintiff has the residual functional capacity (RFC) to perform a range of light work except that she should not be required to do overhead work with her left arm, should have ready access to a restroom, and is limited to unskilled work with no more than occasional public contact. Tr. 1091-97.

At Step Four the ALJ found Plaintiff is unable to perform all of her past relevant work. See 20 C.F.R. §§ 404.1565, 416.965; Tr. 1097.

At Step Five, however, the ALJ found that as of January 10, 2013, the date Plaintiff turned 55 years-old and entered the "advanced age" category, jobs did not exist in the national economy that Plaintiff could perform. Prior to January 10, 2013, however, the ALJ found jobs existed in significant numbers in the national economy that Plaintiff could perform, including Mailroom Clerk and Electronics Worker. Tr. 1097-99.

Accordingly, the ALJ found Plaintiff was disabled within the meaning of the Act, but not until the established onset date of January 10, 2013.

ISSUES ON REVIEW

Plaintiff raises three primary issues on appeal. First, Plaintiff argues the ALJ erroneously rejected her testimony. Second, Plaintiff asserts the ALJ improperly discounted the lay testimony of Thomas Blacklidge, George Shinbo, and Max LaGassey. Finally, Plaintiff claims the ALJ demonstrated bias against her by offering a stipulation for an established onset date at the hearing and allegedly ...


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