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Applegate v. Commissioner Social Security Administration

United States District Court, D. Oregon, Portland Division

April 22, 2015


Bruce W. Brewer, Law Offices of Bruce W. Brewer, PC, West Linn, OR, Attorney for Plaintiff.

S. Amanda Marshall, United States Attorney, District of Oregon.

Ronald K. Silver, Adrian L. Brown, United States Attorney's Office, Portland, Oregon.

Jordan D. Goddard, Social Security Administration, Office of the General Counsel, Seattle, WA, Attorneys for Defendant.


GARR M. KING, District Judge.

Plaintiff Lori Applegate brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner denying plaintiff's application for disability insurance benefits ("DIB"). I reverse the decision of the Commissioner and remand for further proceedings.


The Social Security Act (the "Act") provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security income benefits may be available to individuals who are age 65 or over, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a).

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 cause death or to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for either DIB or SSI ("Supplemental Security Income") due to disability. The evaluation is carried out by the Administrative Law Judge ("ALJ"). The claimant has the burden of proof on the first four steps. Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ determines whether the claimant is engaged in "substantial gainful activity." If the claimant is engaged in such activity, disability benefits are denied. Otherwise, the ALJ proceeds to step two and determines whether the claimant has a medically severe impairment or combination of impairments. A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied.

If the impairment is severe, the ALJ proceeds to the third step to determine whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant performed in the past. If the claimant is able to perform work she performed in the past, the ALJ makes a finding of "not disabled" and disability benefits are denied. 20 C.F.R. §§ 404.1520(e), 416.920(e).

If the claimant is unable to perform work performed in the past, the ALJ proceeds to the fifth and final step to determine if the claimant can perform other work in the national economy in light of his age, education, and work experience. The burden shifts to the Commissioner to show what gainful work activities are within the claimant's capabilities. Parra , 481 F.3d at 746. The claimant is entitled to disability benefits only if he is unable to perform other work. 20 C.F.R. §§ 404.1520(f), 416.920(f).


The court must affirm a denial of benefits if the denial is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue , 674 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" and is more than a "mere scintilla" of the evidence but less than a preponderance. Id . (internal quotation omitted). The court must uphold the ALJ's findings if they "are supported by inferences reasonably drawn from the record[, ]" even if the evidence is susceptible to multiple rational interpretations. Id.


The ALJ found Applegate has severe impairments of degenerative disc disease, mild scoliosis, arthritis, bursitis, and fibromyalgia. The ALJ also found that these impairments, either singly or in combination, are not severe enough to meet or medically equal the requirements of any of the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1. After reviewing the record, the ALJ found Applegate has the residual functional capacity to perform light work with some additional limitations: she can stand and walk a total of four hours out of eight; she cannot climb ladders, ropes, and scaffolds; she can occasionally climb ramps and stairs; she can occasionally stoop, kneel, crawl, and crouch; she can only have occasional exposure to hazards; and she must be allowed to change between sitting and standing approximately every hour at the work station. Based on vocational expert ("VE") testimony, the ALJ found Applegate can work as a food assembler, print circuit board assembler, and wiring harness assembler and, thus, is not disabled under the Act.


Applegate alleges she became disabled on August 15, 2009, when she was 51 years old. She is a high school graduate and took a year of college classes. Applegate has 13 years of experience as a press operator.

Applegate suffers from pain throughout her legs, back, neck, shoulders, and arms. She has to lie down and rest for 30 minutes after 10 to 20 minutes of activity; she can sit for 20 to 30 minutes before having to get up; she can walk for three to five minutes before resting; she can lift a gallon of milk or a small pot of water with difficulty; she can do household chores for 10 minutes at a time. Applegate often walks with a cane or uses a shopping cart for support. She uses narcotic pain medication, including fentanyl patches combined with Percocet or oxycodone. The medication makes her tired and causes her to nap for a couple of hours during the daytime. Her doctors have not suggested surgery. She tried physical therapy years ago without success and has had steroid injections in her hip and shoulder, also without success.

Applegate lives with her husband. She shops three times a week for small items and gets help from her daughter to buy large amounts of groceries.


I. Applegate's Subjective Symptom Testimony

Applegate contends the ALJ erred by failing to give clear and convincing reasons to reject her subjective symptom testimony. The Commissioner defends the ALJ's analysis.

In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis. First, the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged. If the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give ...

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