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Delaney v. Colvin

United States District Court, D. Oregon

March 23, 2015

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


JOHN V. ACOSTA, Magistrate Judge.

Plaintiff Sandra Delaney seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiffs applications for Supplemental Security Income (SSI) under Title XVI and for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. This court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

Following a review of the record, the court finds the decision of the Commissioner is supported by substantial evidence in the record and recommends the ALJ's decision be affirmed.


Plaintiff filed her applications for DIB and SSI on May 14, 2009, and alleged a disability onset date of February 1, 2006. Tr. 126-35.[1] The applications were denied initially and on reconsideration. An Administrative Law Judge (ALJ) held a hearing on February 8, 2012. Tr. 14-46. At the hearing Plaintiff was represented by an attorney. Plaintiff and a vocational expert (YE) testified.

The ALJ issued a decision on March 1, 2012, in which he found Plaintiff was not disabled. Tr. 57-66. That decision became the final decision of the Commissioner on June 7, 2013, when the Appeals Council denied Plaintiffs request for review. Tr. 1-4.

On August 8, 2013, Plaintiff filed a complaint in this court seeking review of the Commissioner's decision.


Plaintiff was born in August, 1959, and was 52 years old at the time of the hearing. Tr. 126. She completed a General Equivalency Diploma. Tr. 173.

Plaintiff alleges disability due to "anxiety, sleep disorder, osteoarthritis, PTSD." Tr. 167.


The initial burden of proof rests on the claimant to establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). To meet this burden, a claimant must demonstrate her inability "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). The ALJ must develop the record when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)).

The district 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 as a whole. 42 U.S.C. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Molina, 674 F.3d. at 1110-11 (quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). It is more than a mere scintilla [of evidence] but less than a preponderance. Id. (citing Valentine, 574 F.3d at 690).

The ALJ is responsible for determining credibility, resolving conflicts in the medical evidence, and resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The court must weigh all of the evidence whether it supports or detracts from the Commissioner's decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even when the evidence is susceptible to more than one rational interpretation, the court must uphold the Commissioner's findings if they are supported by inferences reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The court may not substitute its judgment for that of the Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).


At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(1). See also Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe impairment or combination of impairments. 20 C.F.R. § 416.920(a)(4)(ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner determines the claimant's impairments meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). See also Keyser, 648 F.3d at 724. The criteria for the listed impairments, known as Listings, are enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed Impairments).

If the Commissioner proceeds beyond Step Three, she must assess the claimant's residual functional capacity (RFC). The claimant's RFC is an assessment of the sustained, work-related physical and mental activities the claimant can still do on a regular and continuing basis despite his limitations. 20 C.F.R. § 416.920(e). See also Social Security Ruling (SSR) 96-8p. "A regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent schedule." SSR 96-8p, at * 1. In other words, the Social Security Act does not require complete incapacity to be disabled. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(eiting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

At Step Four the claimant is not disabled if the Commissioner determines the claimant retains the RFC to perform work she has done in the past. 20 C.F.R. § 416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine whether the claimant is able to do any other work that exists in the national economy, 20 C.F.R. § 416.920(a)(4)(v). See also Keyser, 648 F.3d at 724-25, Here the burden shifts to the Commissioner to show a significant number of jobs exist in the national economy that the claimant can perform. Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). The Commissioner may satisfy this burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines set forth in the regulations at 20 C.F.R. part 404, subpart P, appendix 2. If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 416.920(g)(1).


At Step One the ALJ found Plaintiff has not engaged in substantial gainful activity since her February 1, 2006, onset date. Tr. 59.

At Step Two the ALJ found Plaintiff has severe impairments of major depressive disorder, obesity, hip pain, and neuropathy. Id.

At Step Three the ALJ determined Plaintiff's impairments did not equal in severity a listed impairment, and found Plaintiff retained the RFC to perform less than a full range of light work, The ALJ found Plaintiff can occasionally climb ramps and stairs; never climb ropes, scaffolds, and ladders; frequently balance; occasionally stoop, kneel, crawl, and crouch. Finally, the ALJ determined Plaintiff is limited to simple, routine tasks with no public contact and only occasional interaction with coworkers. Tr. 61.

At Step Four, the ALJ found Plaintiff had no past relevant work. Tr. 65.

At Step Five, the ALJ found Plaintiff was capable of performing other work, including meter reader and postage machine operator. Tr. 66.


I. The Medical Record

In April 2006 Plaintiff was advised she needed chemotherapy for breast cancer. Tr. 674-75. By June she was diagnosed with depression and anxiety. Tr. 415. Her doctor prescribed aprazalam. Id.

Plaintiff was seen at Umpqua Community Health Center ("UCHC")six times between August 1, 2006, and November 15, 2006, for depression, anxiety, and insomnia. Tr. 510-13, 173. She was tearful and distressed with severe joint and bone pain for which Oxycodone was prescribed.

In December 2006, Plaintiff was tearful and anxious with panic attacks, nightmares, and suicidal ideation. Tr. 508. On December I 9, 2006, Plaintiff had left flank and abdomen pain and was diagnosed with a kidney stone. Tr. 353.

On January 7, 2007, Plaintiff reported left flank pain and was described as anxious and high strung. Tr. 507. On February 8, 2007, Plaintiff was vomiting and described as "very distraught/crying/worried, " and was prescribed Lexapro and Serequol. Tr. 504. Her goals were to sleep, shower and walk daily. Plaintiff was described as "pressured" on February 14. Tr. 503.

Her mood was "better" on February 23, and she was sleeping better. Tr, 502. Her lumbar spine was tender to palpation.

On May 8, 2007, Plaintiff was anxious, crying, and diagnosed with neuropathy. Tr. 501. Cymbalta and Clonazapam were prescribed. On May 24 Plaintiff was described as sad and emotionally distraught. Tr. 500,

On June 26, 2007, Plaintiff presented as anxious, tearful, and "rattled greatly, " though the Celexa was helping with the neuropathy. Tr. 499. One month later she was seen at Douglas County Mental Health and was "severely depressed, " not sleeping, and described as "alert/forgetful/sad/distraught." Tr. 429. She stayed in bed, not caring for personal grooming or daily activities, and reported everything was a "struggle." Id. Her behavior was hypoactive, her affect was flat and labile, her mood anxious, angry and sad. Id. Her thinking was circumstantial and hopeless, and mental health specialist Ofelia Gentscheff, M.A., diagnosed Major Depressive Disorder, recurrent, moderate. Tr. 430. Plaintiff reported her father had been physically and mentally abusive, and she had had relationships with abusive men. Tr. 431. Ms. Gentscheff concluded Plaintiff had a long history of depression and anxiety exacerbated by a cancer diagnosis and chemotherapy. Tr. 434. Her prognosis was guarded.

In November, 2007, Edward Ottenheimer, III, M.D., an oncologist, diagnosed mild peripheral neuropathy related to Taxol. Tr. 281. In December, 2007, Plaintiff reported having a panic attack the prior week with shortness of breath, hyperventilating, and sweating. Tr. 497. In January 2008, Plaintiff had swelling in her hands, fingers, and feet. Dr. Ottenheimer diagnosed peripheral neuropathy secondary to chemotherapy. Tr. 278.

In March and April 2008, a chronic vitamin B 12 deficiency was diagnosed. Cymbalta was helping ...

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