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Brown v. Colvin

United States District Court, D. Oregon, Portland Division

November 13, 2014

CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant.

TIM D. WILBORN, Wilborn Law Office, P.C., Las Vegas, Nevada. RICHARD A. SLY, Attorney at Law, Portland, Oregon, Attorneys for plaintiff.

S. AMANDA MARSHALL, United States Attorney, District of Oregon, ADRIAN L. BROWN, RONALD K. SILVER, Assistant United States Attorneys, Portland, Oregon, LARS J. NELSON, Office of General Counsel, Social Security Administration, Seattle, Washington, Attorneys for defendant.


MARCO A. HERNANDEZ, District Judge.

Carmen Brown brings this action for judicial review of the Commissioner of Social Security's ("Commissioner") decision denying her applications for Title XVI Social Security Income ("SSI") and Title II Disability Insurance Benefits ("DIB") under the Social Security Act ("Act"). This Court has jurisdiction under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). For the following reasons, the Commissioner's decision is REVERSED and this case is REMANDED for further proceedings.


Ms. Brown was born on March 21, 1965. Tr. 40, 199, 207. She graduated from high school and later received certification as a nursing assistant. Tr. 40, 260. Ms. Brown worked previously as a deliverer, order filler, bench assembler, and window cleaner. Tr. 76-77, 261.

On December 22, 2009, Ms. Brown applied for DIB and SSI, alleging disability as of May 23, 2008, due to an on-the-job neck injury. Tr. 199, 207, 255, 259. After her applications were denied initially and upon reconsideration, Ms. Brown requested a hearing before an administrative law judge ("ALJ"). Tr. 20, 145-65, 168-69, 178-88. On November 29, 2011, a hearing was held before ALJ Paul Robeck, at which Ms. Brown was represented by counsel and testified, as did a vocational expert ("VE"). Tr. 35-98. On December 16, 2011, the ALJ issued a decision finding Ms. Brown not disabled within the meaning of the Act. Tr. 20-28. After the Appeals Council denied her request for review, Ms. Brown filed a complaint in this Court. Tr. 2-10.[1]


The Commissioner engages in a sequential process encompassing between one and five steps in determining disability under the Act. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The initial burden of establishing disability rests upon the claimant. Id .; Yuckert, 482 U.S. at 146 n.5. If the sequential disability analysis reaches the fifth step, the burden shifts to the Commissioner. Tackett, 180 F.3d. at 1100.

At step one, the Commissioner determines if the claimant is performing substantial gainful activity. If she is, the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the Commissioner evaluates if the claimant has "a severe medically determinable physical or mental impairment" that meets the twelve-month durational requirement. If the claimant does not have such a severe impairment, she is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, the Commissioner resolves whether the severe impairment meets or equals a "listed" impairment in the regulations. If the impairment is determined to meet or equal a listed impairment, the claimant is presumptively disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

At step four, the Commissioner considers whether the claimant can still perform "past relevant work." If the claimant can perform such work, she is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv); Yuckert, 482 U.S. at 141. At step five, the burden shifts to the Commissioner to show that the claimant can perform other work existing in significant numbers in the national or local economy; if the Commissioner cannot meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Tackett, 180 F.3d at 1099. Conversely, if the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099.


At step one of the sequential analysis outlined above, the ALJ found that Ms. Brown had not engaged in substantial gainful activity since May 23, 2008, the alleged onset date. Tr. 22. At step two, the ALJ determined that Ms. Brown had the following severe impairments: "cervical radiculopathy, very mild median neuropathy of the right wrist, cervical strain, and small left paracentral disc protrusion at L5-S1 with spondylosis." Id . At step three, the ALJ found that Ms. Brown's impairments, either singly or in combination, did not meet or equal the requirements of a listing. Tr. 23.

Because Ms. Brown did not establish presumptive disability at step three, the ALJ continued to evaluate how her medical impairments affected her ability to work. The ALJ resolved that Ms. Brown had the residual functional capacity ("RFC") to perform "less than the full range of sedentary work, " as defined in 20 C.F.R. § 404.1567(a) and 20 C.F.R. § 416.967(a):

[s]he can lift and carry ten pounds frequently and occasionally; she can stand and walk for two of eight hours; she can occasionally reach overhead; she can occasionally push/pull overhead bilaterally; she can occasionally climb ladders, ropes and scaffolds; she can occasionally crawl; she should avoid jobs that require[e] awkward or stationary neck positions; and she requires a sit/stand option.

Tr. 24.

At step four, the ALJ found that Ms. Brown could not perform her past relevant work. Tr. 27. At step five, the ALJ determined that, considering her age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national and local economy that Ms. Brown could perform despite her impairments, such as charge-account clerk and call-out operator. Tr. 28. Accordingly, the ALJ concluded that Ms. Brown was not disabled within the meaning of the Act. Id.


The reviewing 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. Bray v. Comm'r of the Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). Substantial evidence is "more than a mere scintilla, but less than a preponderance." Id . (citation and internal quotations omitted). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id . The court must weigh the evidence that supports and detracts from the Commissioner's findings. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation omitted). Where the evidence can support either a grant or a denial, the court may not substitute its judgment for that of the Commissioner. Id . (citation omitted). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the court cannot affirm the Commissioner's decision upon reasoning the ALJ did not assert in denying the claimant benefits. Bray, 554 F.3d at 1225-26 (citation omitted).


Ms. Brown argues that the ALJ erred by: (1) failing to include all of the limitations assessed by Darrell Brett, M.D., in the RFC; (2) discrediting her subjective symptom statements; (3) rejecting the lay witness testimony of Patrick Balcom; and (4) finding her not disabled at step five based on an insufficient RFC and invalid VE testimony.

I. Dr. Brett's Opinion

Ms. Brown contends that the ALJ failed to include all of Dr. Brett's assessed limitations into the RFC, despite fully crediting his opinion. Specifically, she asserts that the ALJ's RFC is deficient because it includes no limitation regarding her inability to "perform any repetitive... exertion with the upper extremities." Pl.'s Opening Br. 10 (citing Tr. 379). According to Ms. Brown, "crediting Dr. Brett's opinion that [she] should not perform any repetitive exertion with the upper extremities, i.e. reaching, handling, and fingering, establishes that there is a ...

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