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Dschaak v. Colvin

United States District Court, D. Oregon

January 14, 2015


MERRILL SCHNEIDER, Schneider Kerr & Gibney Law Offices, Portland, OR. Attorney for Plaintiff

S. AMANDA MARSHALL, United States Attorney, District of Oregon RONALD K. SILVER, Assistant United States Attorney, Portland, OR.

DAPHNE BANAY, Social Security Administration. Office of the General Counsel Seattle, WA. Attorney for Defendant


MALCOLM F. MARSH, District Judge.

Plaintiff James. Dschaak seeks judicial review of the final decision of the Commissioner of Social Security denying his application for Supplemental Security Income (SSI) disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405 (g)and 1383 (c) (3). For the reasons that follow, I affirm the final decision of the Commissioner.


Plaintiff protectively filed an application for SSI on September 11, 2007, alleging disability beginning December 31, 1993, due to chronic pain in his back and knees as well as anxiety and depression.

After being denied at the initial and reconsideration levels, plaintiff requested and was granted a first hearing before an administrative law judge (ALJ) on October 14, 2009. The ALJ issued an unfavorable decision on November 19, 2009, which plaintiff appealed to this court. On September 27, 2011, this court reversed and remanded the decision pursuant to Sentence Four of 42 U.S.C. § 406 for further administrative proceedings. See Tr. 606, 610-62.

A different ALJ held a second hearing on July 25, 2013, at which plaintiff appeared with his attorney and testified. A vocational expert (VE), Steven R. Cardinal, also appeared and testified. On August 14, 2013, the ALJ issued an unfavorable decision. The Appeals Council denied plaintiff's request for review, and therefore, the ALJ's August 14, 2013 decision became the final decision of the Commissioner for purposes of review.

Born in 1971, plaintiff was 42 years old on the date of the ALJ's adverse decision. Plaintiff completed tenth grade and has a limited education. Plaintiff's past relevant work includes saw operator and car washer.


The Commissioner has established a five-step· sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d685, 689 (9th Cir. 2009); Tackettv. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).

At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since his alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe impairments: exotoses with osteochrondomas, lumbar spine impairments, left knee disorders, pain disorder, personality disorder, provisional borderline intellectual functioning, and substance use disorder. At step three, the ALJ found that plaintiff's impairments, or combination of impairments, did not meet or medically equal a listed impairment.

The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 416.967(b) except:

he can lift, carry, push, and pull ten pounds frequently and 25 pounds occasionally and stand for 30 minutes at a time up to three hours total in an eight-hour day. [Plaintiff) is not limited in his ability to sit. He can occasionally climb ramps and stairs; should never climb ladders, ropes, or scaffolds; and can only occasionally kneel, crouch, crawl, and bend. [Plaintiff) can occasionally use foot controls bilaterally. He can understand, remember, and carry out simple instructions, make simple work-related decisions and can accomplish simple routine tasks. [Plaintiff) should not interact with the general public and only rare (ten percent of the time or less) superficial interactions with co-workers. [Plaintiff) should be allowed to ...

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