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Osborn v. Colvin

United States District Court, D. Oregon

April 22, 2015

FRED A. OSBORN, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant

For Plaintiff: George J. Wall, Attorney at Law, Portland, OR.

For Defendant: S. Amanda Marshall, United States Attorney, Ronald K. Silver, Ronald K. Silver, Portland, OR; Heather L. Griffith, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Seattle, WA.


Ann L. Aiken, Chief United States District Judge.

Plaintiff Fred A. Osborn brings this action pursuant to the Social Security Act (" Act" ) to obtain judicial review of a final decision of the Commissioner of Social Security (" Commissioner" ) denying his application for disability insurance benefits (" DIB" ). For the reasons set forth below, the Commissioner's decision is reversed and this case is remanded for immediate payment of benefits.


Plaintiff filed his application for DIB on April 23, 2007. Tr. 140. After the application was denied initially and upon reconsideration, the plaintiff timely requested a hearing before the Honorable John J. Madden, Jr. (" ALJ" ). Tr. 91-92. On June 3, 2009, an ALJ hearing was held. Tr. 25-79. The ALJ, on July 22, 2009, issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 14-22. After the Appeals Council declined review, plaintiff filed a complaint in this court. Tr. 1-3. On January 25, 2012, United States Magistrate Judge John Jelderks issued a Findings and Recommendation which recommended the case be reversed and remanded to an ALJ. Tr. 444-69. United States District Judge Michael Mosman adopted the Findings and Recommendation, and reversed and remanded the case by order. Tr. 441-44.

A second ALJ hearing was held before Judge Madden on December 6, 2012. Tr. 394-426. On January 25, 2013, the ALJ issued a decision finding plaintiff not disabled under the Act. Tr. 372-86. The Appeals Council once again declined review, and plaintiff returned to this court. Tr. 342-46.


Born on July 18, 1951, plaintiff was 48 years old on the alleged onset date of disability, 51 years old at his date last insured, and 61 years old at the date of the second hearing. Tr. 140, 202, 395. Plaintiff attained a GED. Tr. 157. He has previous work experience as a truck driver and caterer helper. Tr. 383. Plaintiff alleges disability beginning on May 29, 1999 due to low back pain and a left hand impairment. Tr. 151, 202.


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 relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). 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). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

The initial burden of proof rests upon the plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the plaintiff 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)(1)(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, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); 20 C.F.R. § 416.920. First, the Commissioner determines whether a plaintiff is engaged in " substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b). If so, the plaintiff is not disabled.

At step two, the Commissioner determines whether the plaintiff has a " medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 416.920(c).

At step three, the Commissioner determines whether the impairment meets or equals " one of a number of listed impairments that . . . are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 416.920(d). If so, plaintiff is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

At step four, the Commissioner determines whether the plaintiff can still perform " past relevant work." 20 C.F.R. § 416.920(e). If the plaintiff can work, he is not disabled. If he cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that plaintiff can perform other work that exists in the national economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 416.920(e) & (f). If the Commissioner meets this burden, the plaintiff is not disabled. 20 C.F.R. § 416.966.


At step one of the five step sequential evaluation process, the ALJ found that plaintiff had not engaged in substantial gainful activity from the application date through his date last insured. Tr. 374. At step two, the ALJ determined that plaintiff had the following severe impairments: " degenerative disc disease of the lower spine and remote left hand injury." Tr. 375. At step three, the ALJ found plaintiff's impairment did not meet or equal the requirements of a listed impairment. Id.

Because plaintiff did not establish disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected his ability to work. The ALJ resolved that plaintiff had the residual functional capacity (" RFC" ) to perform a limited range of light work in that he could lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; stand and walk six hours of an eight-hour workday and sit for six hours of an eight-hour workday; occasionally climb ladders, ropes, and scaffolds; frequently climb ramps and stairs; occasionally stoop; and frequently kneel, crouch, and crawl. Id. At step four, the ALJ found plaintiff had no past relevant work. Tr. 383. At step five, the ALJ determined that jobs existed in significant numbers in the national and local economy that plaintiff could perform despite his impairments. Tr. 384-86. Accordingly, the ALJ concluded that plaintiff was not disabled under the Act. Id. at 386.


Plaintiff alleges that the ALJ erred by: (1) failing to adopt the opinion of treating physician Dr. Belza; (2) omitting left hand restrictions from the RFC; and (3) not finding plaintiff presumptively disabled pursuant to Vocational Rule 201.14.

As a threshold matter, plaintiff submitted new evidence to the Appeals Council following the ALJ's second decision of January 15, 2013. Tr. 343, 362-63. On review, this court has a duty to consider the entire record before it, including new evidence submitted to the Appeals Council and made part of the overall administrative record. " When the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence." Brewes v. Commissioner of Social Sec. Admin.,682 F.3d 1157, 1162-63 ...

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