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Brown v. Colvin

United States District Court, D. Oregon, Portland Division

April 24, 2015

WALTER LEE BROWN, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

OPINION AND ORDER

PAUL PAPAK, Magistrate Judge.

Plaintiff Walter Lee Brown filed this action August 28, 2013, seeking judicial review of the Commissioner of Social Security's final decision denying his application for supplemental security income ("SSI") under Title XVI of the Social Security Act (the "Act"). This court has jurisdiction over plaintiff's action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).

Brown argues that by erroneously rejecting medical evidence and erroneously rejecting his testimony regarding the extent of his impairments, the Commissioner failed properly to assess his residual functional capacity after completing step three of the five-step sequential process for analyzing a Social Security claimant's entitlement to benefits, and for that reason erred by finding Brown capable of performing work as a counter clerk or rental clerk at step five of the process.

I have considered all of the parties' briefs and all of the evidence in the administrative record. For the reasons set forth below, the Commissioner's decision is reversed.

DISABILITY ANALYSIS FRAMEWORK

To establish disability within the meaning of the Act, a 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 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 claimant has made the requisite demonstration. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. § 416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

At the first step, the Administrative Law Judge considers the claimant's work activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. § 416.920(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will proceed to the second step.

At the second step, the ALJ considers the medical severity of the claimant's impairments. See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. § 416.920(a)(4)(ii). An impairment is "severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 20 C.F.R. § 416.920(c). The ability to perform basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 416.921(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or do not meet the duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(ii), 416.920(c). Nevertheless, it is well established that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-154. "An impairment or combination of impairments can be found not severe' only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual[']s ability to work." Id., quoting S.S.R. 85-28, 1985 SSR LEXIS 19 (1985).

If the claimant's impairments are severe, the evaluation will proceed to the third step, at which the ALJ determines whether the claimant's impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d).

If the claimant's impairments are not equivalent to one of the enumerated impairments, between the third and the fourth steps the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all the relevant medical and other evidence in the claimant's case record. See 20 C.F.R. § 416.920(e). The RFC is an estimate of the claimant's capacity to perform sustained, work-related physical and/or mental activities on a regular and continuing basis, [1] despite the limitations imposed by the claimant's impairments. See 20 C.F.R. § 416.945(a); see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996).

At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. § 416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iv), 416.920(a)(4)(iv), 416.920(f). In the event the claimant is no longer capable of performing his or her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden of proof shifts, for the first time, to the Commissioner.

At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's age, education, and work experience to determine whether a person with those characteristics and RFC could perform any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner meets her burden to demonstrate the existence in significant numbers in the national economy of jobs capable of being performed by a person with the RFC assessed by the ALJ between the third and fourth steps of the five-step process, the claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits if the Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(g).

LEGAL STANDARD

A reviewing court must affirm an Administrative Law Judge's decision if the ALJ applied proper legal standards and his or her findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Lingerifelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).

The court must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id., quoting Reddick v. Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of the Commissioner. See id., citing Robbins, 466 F.3d at 882; see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Moreover, the court may not rely upon its own independent findings of fact in determining whether the ALJ's findings are supported by substantial evidence of record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC. v. Chenery Corp., 332 U.S. 194, 196 (1947). If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible [of] more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).

SUMMARY OF ADMINISTRATIVE RECORD[2]

Brown was 43 at the time of the hearing. Tr. 47.[3] He attended school through the eighth grade, and has received no subsequent formal education or vocational training. Id According to the evidence of record, prior to his claimed amended disability onset date of July 22, 2009, Brown had no substantial gainful activity.

A. The Medical Record

Brown was seen in the emergency room on January 3, 2008, with chest pain, cough and shortness of breath over the previous three days. Tr. 218. A chest xray showed three calcific densities of uncertain significance. He was prescribed Proventil, Zithromax, and Vicodin. Tr. 219.

A February 14, 2008 echocardiogram showed a moderately enlarged right atrium, with severe regurgitation of the pulmonic valve and the tricuspid valve. Tr. 208-09.

On August 21, 2008, Brown was seen in the emergency room for heart palpitations. Tr. 203. Alan Garvin, M.D., examined Brown on November 25, 2008 for complaints of chest pressure radiating to the left side occurring daily, shortness of breath on exertion and palpitations with shortness of breath occurring daily, and leg and hip pain and cramps. Id Dr. Garvin found "a slight bit of weakness in the right upper extremity, " and assessed chest pain and rule out ischemic heart disease. Tr. 205. Dr. Garvin noted the patient used methamphetamines. An electrocardiogram was abnormal. Tr. 212.

On November 27 Brown was seen in the emergency room for the sudden onset of low back pain. Tr. 250. Xrays of the lumbar spine showed minimal degenerative changes. Tr. 253. He was prescribed Vicodin. On December 18, 2008, Brown underwent a stress test for dizziness and fatigue, and was transferred to the emergency room because of an atrial flutter. Tr. 289. He received radiofrequency ablation and was discharged on December 20 with nitroglycerin, aspirin, warfarin, Metoprolol and Norco. Tr. 290. On December 22 Brown was seen in the emergency room with chest pain. Tr. 262.

On January 9, 2009, Brown reported easy bruising and pain in his legs. Zoloft was prescribed. Tr. 389. A January 20, 2009 MRI of the cervical spine showed C6-7 borderline central stenosis, mild foraminal stenosis secondary to broad-based central disc extrusion spur complex, and bilateral uncovertebral spurring; C5-6 left foraminal stenosis secondary to broad-based central disc protrusion spur complex, with left uncovertebral spurring; C4-5 mild broad-based annular bulge spur complex without significant canal encroachment; and C3-4 mild right foraminal encroachment secondary to broad-based annular bulge spur complex, with minimal retrolisthesis and uncovertebral spurring. Tr. 391.

On February 13 and 20, 2009, Brown reported increasing leg cramps. Tr. 383-84.

On March 10, 2009, Brown was evaluated by Miguel Hernandez, M.D. Tr. 336-340. Dr. Hernandez reviewed medical records and imaging studies, and noted heart disease and loss of function of the right hand. Brown was taking aspirin, Coumadin, Zoloft, metoprolol and nitroglycerin. Tr. 337. Motor strength was 5/5 throughout, and he was able to grip 60 pounds of pressure with the right hand and 120 pounds of pressure with the left hand. Tr. 339. Brown's right hand had diminished sense to light touch over the palm up to the wrist level. Tr. 340. Dr. Hernandez opined that Brown could stand, walk, or sit up to six hours in an eight hour work day, carry SO pounds occasionally and 25 pounds frequently. Tr. 340. Brown had ...


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