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Burger v. Colvin

United States District Court, D. Oregon, Eugene Division

March 26, 2015

AMOS BURGER, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


JOHN V. ACOSTA, Magistrate Judge.

Amos Burger ("plaintiff') seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based on a careful review of the record, the Commissioner's decision should be reversed and this case should be remanded for fmiher proceedings.

Procedural Background

Plaintiff applied for DIB on September 1, 2010, alleging disability as of March 10, 2008, due to an injury sustained while serving in the United States Coast Guard, which resulted in chronic pain and depression. (Tr. 11, 175-78, 192.) His application was denied initially and upon reconsideration. (Tr. 116-19, 121-23.) A hearing was held on August 22, 2012, before an Administrative Law Judge ("ALJ"). (Tr. 31-81.) On September 14, 2012, the ALJ issued a decision finding plaintiff not disabled. (Tr. 11-25.) Plaintiff timely requested review of the ALJ's decision and, after the Appeals Council denied his request for review, plaintiff filed a complaint in this Court.[1](Tr. 1-3.)

Factual Background

Born on October 6, 1982, plaintiff was 25 years old on the alleged onset date of disability and 29 years old at the time of the hearing. (Tr. 24, 39, 175.) He graduated from high school and received vocational training in law enforcement during his service with the United States Coast Guard. (Tr. 41, 193.) Plaintiff previously worked as a caregiver, coxswain, and law enforcement specialist. (Tr. 41-42, 71, 193, 209)

Staudard of Review

The 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. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [a court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).

The initial burden ofproofrests upon the claimant to establish disability. Howardv. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A).

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.§ 404.1520. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity"; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b).

At step two, the Commissioner resolves 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). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.

At step three, the Commissioner evaluates whether the claimant's impairment meets or equals "one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity.'' Id.; 20 C.F.R. § 404.1520(d). If so, the claimant is presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

At step four, the Commissioner determines whether the claimant can still perform "past relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R.§ 404.1520(f). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 141. At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national or local economy. Id. at 142; 20 C.F.R. § 404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566.

The ALJ's Findings

At step one of the five-step sequential evaluation process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. (Tr. 13.) At step two, the ALJ found that plaintiff had the following severe impairments: "chronic shoulder pain (myofascial pain), left ankle pain, plantar fasciitis, right hand carpal tunnel syndrome, depression, and generalized anxiety disorder." (Id. ) At step three, the ALJ found that plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. (Tr. 16.)

As such, the ALJ continued the sequential evaluation process to determine how plaintiff's medical limitations affected his ability to work. The ALJ resolved that plaintiff had the residual functional capacity ("RFC") to perform "light work as defined in 20 CFR 404.1567(b)" except:

[he] can occasionally push and pull weights up to seven pounds with his right hand. He cannot lift above waist-level with his right hand. He cannot climb ladders, ropes, or scaffolds. He should avoid all exposure to workplace hazards, such as machinery and heights. He requires a sit-stand option, which includes not sitting or standing for more than 15 minutes before alternating his position for at least five minutes. He is limited to work with no more than occasional interaction with coworkers and the public. He is able to remember and carry out four to five-step instructions.

(Tr. 17.) At step four, the ALJ concluded that plaintiff could not perform his past relevant work. (Tr. 24.) At step five, the ALJ found, based on the testimony of a vocational expert ("VE"), that plaintiff could perform a significant number ofjobs existing in the national economy despite his impairments, such as security guard and surveillance system monitor. (Tr. 24-25.) Accordingly, the ALJ determined that plaintiff was not disabled within the meaning of the Act. (Tr. 25.)


Plaintiff argues that the ALJ erred by: (1) improperly assessing medical evidence from Charles Kuttner, M.D., Alexander Gloria, M.D., and Dorothy Anderson, Ph.D., as well as counselor Vince Morrison; (2) rejecting the Veterans Affairs' ("VA") 100% disability rating; (3) finding him not fully credible; (4) disregarding the lay witness statements of his wife, ...

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