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Scherer-Huston v. Commissioner of Social Security

United States District Court, D. Oregon

April 16, 2015


Tim Wilborn, WILBORN LAW OFFICE, P.C., Las Vegas, Nevada, Attorney for Plaintiff.

S. Amanda Marshall, UNITED STATES ATTORNEY, District of Oregon, Ronald K. Silver, ASSISTANT UNITED STATES ATTORNEY, Portland, Oregon.

Kathy Reif, SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration, Seattle, Washington, Attorneys for Defendant.


MARCO A. HERNANDEZ, District Judge.

Plaintiff Jackie Scherer-Huston brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB) and supplemental security income (SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I reverse the Commissioner's decision and remand for the payment of benefits.


Plaintiff applied for DIB and SSI on November 1, 1995, alleging an onset date of December 7, 1993. Tr. 314-16 (DIB); Tr. 535, 536-37 (SSI). Her application was denied initially and on reconsideration. Tr. 314-16 (DIB; Page 315 missing from Administrative Record), 293-94, 298-301; Tr. 538, 539-42 (SSI). On June 18, 1997, Plaintiff appeared, with counsel, for a hearing before Administrative Law Judge (ALJ) William L. Stewart who issued a decision on November 25, 1997 finding Plaintiff not disabled. Tr. 543-66. On December 9, 1998, the Appeals Council remanded the case back to the ALJ for further proceedings. Tr. 591-94.

Plaintiff had another hearing with ALJ Stewart who again found her not disabled in a September 21, 1999 decision. Tr. 615-49. On April 1, 2002, the Appeals Council remanded the case to a different ALJ for further proceedings. Tr. 659-61. On December 17, 2004, Plaintiff appeared with counsel for a new hearing, after which ALJ Jean Kingery found her not disabled in an April 26, 2005 decision. Tr. 20-40. On August 23, 2007, the Appeals Council denied review. Tr. 13-15. Plaintiff filed a civil action in this Court and on March 30, 2009, Judge Haggerty issued an Opinion and Order remanding the case to the agency for further proceedings. Tr. 984-93.

On remand, ALJ John Madden conducted a hearing on March 16, 2010 and issued a decision on April 16, 2010, finding Plaintiff not disabled. Tr. 997-1017. Once again, on April 27, 2011, the Appeals Council remanded the matter to the ALJ for a new hearing. Tr. 1018-21. On December 30, 2011, after a second hearing before him, ALJ Madden issued a new decision finding Plaintiff not disabled. Tr. 963-984A. On February 24, 2014, the Appeals Council denied review, Tr. 942-46, making ALJ Madden's December 30, 2011 decision the final agency order which Plaintiff now appeals to this Court.


Plaintiff alleges disability based on the effects of a brain stem stroke, dizziness, impaired vision, balance problems, hypertension, somatoform disorder, depression, anxiety, obesity, migraine headaches, mild left hemiparesis, and left knee surgery. Tr. 106-11, 138-41, 335. As explained by the ALJ in the December 2011 decision, Plaintiff's insured status for DIB expired December 31, 1998, and her eligibility for SSI benefits expired on December 31, 2011. Tr. 967. Therefore, Plaintiff must establish that her disability began before December 31, 1998 for DIB and before December 31, 2001 for SSI.

At the time of her alleged onset date of December 7, 1993, Plaintiff was thirty-eight years old. Tr. 983. Plaintiff was forty-six years old on the last date for which she was eligible for SSI. Tr. 983. Plaintiff is a high school graduate and has past relevant work experience as a truck driver. Tr. 983, 1544. Because the parties are familiar with the medical and other evidence of record, I refer to any additional relevant facts necessary to my decision in the discussion section below.


A claimant is disabled if unable 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), 1382c(3)(a).

Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines 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), 416.920(c). If not, the claimant is not disabled.

In step three, the Commissioner determines whether plaintiff's impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.


At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her alleged onset date through December 31, 2011. Tr. 969. Next, at step two, the ALJ determined that Plaintiff has severe impairments of status-post brain stem stroke, probably secondary to methamphetamine abuse; methamphetamine abuse in questionable remission for relevant period; history of mild left hemiparesis and impaired vision, mostly resolved; status-post left knee surgery; somatoform disorder; history of depression, anxiety, and personality disorder with histrionic and dependent traits; obesity; and history of headaches. Id . At step three, the ALJ found that Plaintiff's impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 970-71.

At step four, the ALJ concluded that Plaintiff had the residual functional capacity (RFC) during the relevant period to lift and carry twenty pounds occasionally and ten pounds frequently, to stand and/or walk for six hours per eight-hour work day, and to sit for six hours per eight-hour work day. Tr. 971. Her ability to push and pull was limited to the weights specified; she was able to occasionally balance and occasionally climb ladders, ropes or scaffolds. Tr. 971-72. She was also to avoid concentrated exposure to hazards such as moving machinery and heights. Tr. 972. Plaintiff had moderate limitations in carrying out detailed instructions, maintaining attention and concentration for extended periods, performing within a schedule, being punctual, sustaining an ordinary routine without special ...

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