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Wagner v. Colvin

United States District Court, D. Oregon, Medford Division

April 8, 2015

SHERRY L. WAGNER, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


MARK D. CLARKE, Magistrate Judge.

Plaintiff Sherry L. Wagner ("Wagner") seeks judicial review of the Social Security Commissioner's final decision denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income Benefits ("SSI") under Titles II and XVI of the Social Security Act. This court has jurisdiction under 42 U.S.C. § 405(g). The Commissioner's decision is reversed and remanded for further proceedings consistent with this Opinion and Order.


Born on February 26, 1957, Wagner applied for benefits on June 25, 2008. Tr. 226, 233. She alleges disability since February 8, 2007, due to back pain. Tr. 226, 233. The Commissioner denied her application initially and upon reconsideration. Tr. 143-60. An Administrative Law Judge ("ALJ") held two hearings; the first occurred on March 18, 2011, and the second occurred on July 7, 2011. Tr. 122-36, 45-119. The ALJ subsequently found Wagner not disabled on August 5, 2011. Tr. 21-30. The Appeals Council then declined review on August 12, 2013. Wagner now appeals to this court.


The Commissioner engages in a sequential process encompassing between one and five steps in determining disability under the meaning of the Act. 20 C.P.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987).

At step one, the ALJ determines if the claimant is performing substantial gainful activity. If she is, the claimant is not disabled. 20 C.P.R.§ 404. 1520(a)(4)(i). At step two, the ALJ determines if the claimant has "a severe medically determinable physical or mental impairment" that meets the twelve-month durational requirement. 20 C.P.R.§§ 404.1509; 404. 1520(a)(4)(ii). If the claimant does not have such a severe impairment, she is not disabled. Id.

At step three, the ALJ determines whether the severe impairment meets or equals a "listed" impairment in the regulations. 20 C.P.R.§ 404. 1520(a)(4)(iii). If the impairment is determined to equal a listed impairment, the claimant is disabled.

If adjudication proceeds beyond step three the ALJ must first evaluate medical and other relevant evidence in assessing the claimant's residual functional capacity ("RFC"). The claimant's RFC is an assessment of work-related activities the claimant may still perform on a regular and continuing basis, despite limitations imposed by her impairments. 20 C.P.R. § 404.1520(e); Social Security Ruling ("SSR") 96-8p.

The ALJ uses this information to determine if the claimant can perform his past relevant work at step four. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can perform her past relevant work, she is not disabled. If the ALJ finds that the claimant's RFC precludes performance of her past relevant work the ALJ proceeds to step five.

At step five the Commissioner must determine if the claimant is capable of performing work existing in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v); 404.1520(f); Yuckert, 482 U.S. at 142; Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). If the claimant cannot perform such work, she is disabled. Id.

The initial burden of establishing disability rests upon the claimant. Tackett, 180 F.3d at 1098. If the process reaches the fifth step, the burden shifts to the Commissioner to show that "the claimant can perform some other work that exists in the national economy, taking into consideration the claimant's residual functional capacity, age, education, and work experience." Id. at 1100. If the Commissioner meets this burden the claimant is not disabled. 20 C.F.R. §§ 404.1520(g); 404.1566.


The ALJ found that Wagner had severe impairments of lumbar spondylosis and lumbar spine facet arthropathy, but found that neither impairment met a Listing. Tr. 23-24. The ALJ concluded that she retained the RFC to perform light work except that she:

can never climb ladders, ropes, or scaffolds, can occasionally stoop and crouch, and can have no greater than occasional exposure to excess vibration, and cannot withstand any exposure to workplace hazards such as unprotected heights and involving moving machinery. [Wagner] must be given a sit/stand option to be performed while remaining on task.

Tr. 24. Considering this RFC, the Vocational Expert ("VE") indicated Wagner could perform her past relevant work as a sales cashier. Tr. 29. The VE also indicated Wagner was capable of performing the following occupations: counter clerk, electronics worker, and routing clerk. Tr. 30. Accordingly, the ALJ found Wagner not disabled. Id.


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. Commissioner for Social Security Administration, 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 the 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.

This court must weigh the evidence that supports and detracts from the ALl's conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chafer, 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. Social Security Administration, 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, this court cannot now 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)).

I. Credibility

Wagner argues the ALJ improperly rejected her pain and other subjective symptom testimony without making "specific findings stating clear and convincing ...

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