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Hopper v. Colvin

United States District Court, D. Oregon

November 14, 2014

CAROLYN COLVIN, Commissioner, Social Security Administration, Defendant.

Rory Linerud, LINERUD LAW FIRM, Salem, OR, Attorney for Plaintiff.

S. Amanda Marshall, United States Attorney, District of Oregon, Adrian L. Brown, Assistant United States Attorney, Ronald K. Silver, Assistant United States Attorney, U.S. ATTORNEY'S OFFICE, DISTRICT OF OREGON Portland, OR, Lars J. Nelson, SOCIAL SECURITY ADMINSTRATION, Office of the General Counsel Seattle, WA. Attorneys for Defendant.


MARCO A. HERNNDEZ, District Judge.

Plaintiff Arthur Hopper brings this action for judicial review of the Commissioner's final decision denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act and for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. I have jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). For the following reasons, I affirm the Commissioner's decision in part and reverse in part.


Mr. Hopper has a GED and a work history as an oil drilling "rough neck" and a tire repairer. Tr. 40-42. At the time of his hearing, he was fifty years old. Tr. 38. He alleges that he is disabled as a result of a combination of ailments including hepatitis C, with cirrhosis and fibrosis; diabetes mellitus type II with associated neuropathic leg pain; morbid obesity; schizoaffective disorder; and antisocial personality disorder. Pl. Br. at 2. Mr. Hopper has a history of abusing methamphetamine and alcohol, and had been sober for more than one year at the time of the hearing. Tr. 945. Mr. Hopper takes several medications, including metformin; he alleges metformin causes urinary incontinence. Tr. 19.

Mr. Hopper applied for benefits on January 21, 2009, citing hypertension and diabetes with cellulitis in his feet, limiting his ability to walk. Tr. 271. He subsequently reported that he was diagnosed with Hepatitis C on February 20, 2009, and that he has high blood pressure, high blood sugar, and PTSD. Tr. 313, 327.

On February 2, 2012, Mr. Hopper appeared before Administrative Law Judge ("ALJ") Marilyn S. Mauer, represented by attorney Rory Linerud. Tr. 35. Mr. Hopper testified that he has no source of income. Tr. 38. He receives $200 per month in food stamps and a subsidy for his rent, utilities, and health care through the Veterans Administration. Id . He testified that his medication causes him to have an "emergency" if he is more than five feet from the restroom when he needs to use the bathroom. Tr. 43. He also testified that his right leg had gone completely numb two months prior to the hearing. Tr. 44. He stated he is unable to sit or to stand up for long periods of time, he has difficulty walking for more than 15 minutes, he has difficulty climbing stairs, he can comfortably lift no more than approximately 7 pounds, and he fatigues easily. Tr. 46-49. He also told the ALJ that he has difficulty focusing on tasks, and that he has difficulty getting along with other people and had been fired from jobs because of this. Tr. 44, 49-50. He described frequent nightmares, but said they are controlled by medication. Tr. 50. He further testified to hearing voices of people who are not there, which affects his ability to concentrate. Tr. 54.

The ALJ denied Mr. Hopper's claim on April 12, 2012. Mr. Hopper appealed the ALJ's decision to the Social Security Administration ("SSA") Appeals Counsel, which denied his request for review on July 1, 2013, making the ALJ's decision the Commissioner's final decision that is now before this Court on appeal. Tr. 1.


A claimant is disabled if he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, the agency uses a five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability.


In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines 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 not, the claimant is not disabled.

In step three, the Commissioner determines whether the impairment meets or equals "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 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity ("RFC") to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner.

In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; Tackett v. Apfel, 180 F.3d 1094, 1098-1100 (9th Cir. 1999); 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.


At step one, the ALJ found that Mr. Hopper had not engaged in substantial gainful activity since January 1, 2007, the onset date for Mr. Hopper's disability. Tr. 18, Finding 2. The ALJ noted that although Mr. Hopper "stated that he was placed in a job by a temporary agency, but... was fired from that job" after January 1, 2007, "this work activity did not rise to the level of substantial gainful activity." Id . At step two, the ALJ found that Mr. Hopper had "the following severe impairments: hepatitis C with moderate cirrhosis and moderate fibrosis, and without ascites or varices; diabetes mellitus type II with associated neuropathic leg pain; and morbid obesity." Tr. 19, Finding 3. At step three, the ALJ found that Mr. Hopper's impairments did not meet or equal the requirements of a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 22, Finding 4. The ALJ then assessed Mr. Hopper's RFC:

Mr. Hopper has the residual function capacity to perform light work as defined in 20 CFR 404.1567(b). He should avoid all exposure to hazards such as unprotected heights or moving equipment that can cause crushing or cutting injuries. He should never climb ladders, ropes or scaffolds. He is capable of frequent stooping, crouching, crawling, kneeling, and climbing ramps or stairs. Mr. Hopper requires ready access to a restroom but not with a frequency that would affect productivity. He needs the option to sit or stand at will while performing essential tasks that primarily involve objects, rather than people. He should have no public contact and no more than occasional coworker contact that does not include any teamwork assignments.

Tr. 23, Finding 5. At step four, the ALJ found that Mr. Hopper could not perform any past relevant work. Tr. 25, Finding 6. Finally, at step five, the ALJ found Mr. Hopper was not disabled because he could perform jobs that existed in significant numbers in the national economy, such as Assembler, Small Products I and Electronics Assembler. Tr. 25-26, Finding 10.


The reviewing court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.

This court must weigh the evidence that supports and detracts from the ALJ's conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the Commissioner. Id . (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading. Id .; see also Batson, 359 F.3d at 1193. However, this Court cannot now rely upon reasoning the ALJ did not assert in affirming the ...

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