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Zetlmaier v. Commissioner of Social Security

United States District Court, D. Oregon

January 14, 2015


Tim D. Wilborn, WILBORN LAW OFFICE, P.C., Las Vegas, NV Attorney for Plaintiff.

S. Amanda Marshall, United States Attorney, District of Oregon

Ronald K. Silver, Assistant United States Attorney, U.S. ATTORNEY'S OFFICE, DISTRICT OF OREGON Portland, OR.

Courtney Garcia, Special Assistant United States Attorney, SOCIAL SECURITY ADMINISTRATION Office of the General Counsel Seattle, WA. Attorneys for Defendant.


MARCO A. HERNANDES, District Judge.

Plaintiff Mark Zetlmaier brings this action for judicial review of the Commissioner's final decision denying his application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). For the reasons that follow, the Commissioner's decision is affirmed in part and reversed in part and remanded for further proceedings.


Plaintiff protectively filed an application for DIB on June 27, 2008, alleging an onset date of February 2, 2004. Tr. 211-218. His application was denied initially and upon reconsideration. Tr. 134-142. On February 3, 2010, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 104-114. On March 12, 2010, the ALJ found Plaintiff not disabled. Tr. 117-125. Plaintiff appealed. Tr. 172. The Appeals Council remanded the case to the ALJ on August 16, 2011, with instructions to evaluate and determine the nature and severity of Plaintiff's bilateral degenerative arthritis of the thumbs, to further evaluate Plaintiff's subjective complaints, give consideration to Plaintiff's maximum residual functional capacity (RFC) during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations, and to obtain evidence from a medical expert and vocational expert. Tr. 129-133. On May 1, 2012, the ALJ once again found Plaintiff not disabled. Tr. 18-29. The Appeals Council denied review, making the ALJ's decision the final Agency decision. Tr. 1-6; 20 C.F.R. § 422.210 (2014). Plaintiff now seeks judicial review of that decision.


Plaintiff alleges disability based on rheumatoid arthritis, fibromyalgia, ankylosing spondinitis, bursitis, neuritis, veins and tendons swell, sjogrens, fibrositus, joint stiffness, and depression. Tr. 236. He was sixty-one at the time of the 2012 administrative hearing. Tr. 81. He completed three years of college. Tr. 81-82. He has past work experience as a real estate broker. Tr. 82-87. Because the parties are familiar with the medical and other evidence in the record, the Court refers to any additional relevant facts in the discussion section below.


A claimant is disabled if 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 e.g., Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.

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. 137 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 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; 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 determined that Plaintiff had not engaged in substantial gainful activity from his alleged onset date of February 2, 2004 through his date last insured of June 30, 2005. Tr. 23. Next, at steps two and three, the ALJ determined that Plaintiff had severe impairments of fibromyalgia and bilateral thumb arthritis but that the impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 23-25. At step four, the ALJ concluded that Plaintiff had the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 404.1567(b), except he could not climb ladders, ropes, or scaffolds; he could frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and he could perform bilateral fingering occasionally. Tr. 25. The ALJ determined that Plaintiff had to avoid all exposure to common workplace hazards such as moving machinery and unprotected heights due to the use of multiple narcotics. Tr. 25. With this RFC, the ALJ determined that Plaintiff was capable of performing past relevant work as a real estate broker. Tr. 28. Alternatively, the ALJ determined at step five that Plaintiff was able to perform jobs that exist in significant numbers in the national economy, such as front desk receptionist, credit authorizer, and dispatcher of maintenance services. Tr. 29. Thus the ALJ determined that Plaintiff was not disabled. Tr. 23.


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.

The 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, the court cannot not rely upon reasoning the ALJ did not assert in affirming the ALJ's findings. Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).


Plaintiff contends that the ALJ erred by: (1) failing to include a limitation on "handling" in the RFC; (2) finding that Plaintiff could perform past relevant work; and (3) finding that Plaintiff had transferable skills to perform other jobs that exist in substantial numbers in the national economy. The Court finds no error in the RFC's lack of limitation on handling. However, the ...

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