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Nickolite v. Colvin

United States District Court, D. Oregon

March 30, 2015

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


MICHAEL J. McSHANE, District Judge.

Plaintiff Jeffrey Nickolite brings this action for judicial review of the Commissioner's decision denying his application for disability insurance benefits. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

Plaintiff applied for benefits on December 21, 2005, alleging onset of disability beginning June 1, 2000. TR 216.[1] Following a hearing before an administrative law judge ("ALJ), the ALJ issued a decision on March 24, 2009 finding plaintiff not disabled. TR 123. Plaintiff requested review by the Appeals Council ("AC"), who remanded the matter to the ALJ with instructions (the "remand order"). TR 134-38.

On remand from the AC, the All held a ALJ second hearing on June 7, 2012. TR 183. In a second decision dated June 28, 2012, the ALJ again found plaintiff was not disabled. TR 48. The AC denied plaintiff's request for review, making the ALJ's second decision the Commissioner's final decision. TR 2, 48. Plaintiff now seeks judicial review of the final decision. For the reasons stated below, the Commissioner's decision is AFFIRMED.


The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).


The Social Security Administration utilizes a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520 and 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If the claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity ("RFC"), age, education, and work experience. Id.

At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since December 15, 2005, the date of his application. TR 53. At step two, the ALJ determined that plaintiff's lumbar degenerative disc disease, residuals of left anterior cruciate ligament repair, residuals of right hand fracture, antisocial personality disorder, and substance abuse were severe impairments. Id.

At step three, the ALJ found that plaintiffs impairments, either singly or in combination, did not meet or equal the severity of one of the listed impairments in 20 C.F.R. § 404, subpt. P, app. 1. TR 54. Between steps three and four, the ALJ determined that plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 416.967 except that he should never climb ladders, ropes, and scaffolds. TR 55. He can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, crawl, and handle with the right hand. Id. He can tolerate no more than superficial interactions with others with no close cooperation or coordination. Id.

At step four, the ALJ found that plaintiff could not perform his past relevant work as a welder. TR 59. At step five, The ALJ found that there were jobs that existed in significant numbers in the national and regional economy that plaintiff was capable of performing, specifically the occupations of laundry sorter and small products or bench assembler. TR 60. Thus, the ALJ concluded that plaintiff was not disabled as defined by the Social Security Act.

Plaintiff argues the ALJ erred by: (1) failing to follow the AC's remand order; and (2) failing to properly consider Plaintiff's limitations. Because the Commissioner's decision is based on proper legal standards and supported by substantial evidence, the Commissioner's decision is AFFIRMED.

1. Compliance with the Appeals Council Remand Order.

Plaintiff argues that the ALJ erred by not following the AC's remand order. When the Commissioner responded by noting this is not an issue properly before the court, Plaintiff responded by slinging mud. See Reply, 2 ("[T]he Commissioner's admitted inability to understand the argument does not speak well for her.").[2] Plaintiff argues the Commissioner "wastes the Court's time, as the Supreme Court long ago decided" that an ALJ's failure to follow a remand order constitutes legal error. Id. (citing Sullivan v. Hudson, 490 U.S. 877, 866 (1989). Hudson, however, dealt with the ...

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