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Wilborn v. Colvin

United States District Court, D. Oregon

May 18, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Alan R. Unkeles, Hillsboro, OR, Attorney for plaintiff.

S. Amanda Marshall, United States Attorney, Ronald K. Silver, Assistant United States Attorney, Portland, OR, Thomas M. Elsberry, Special Assistant United States Attorney Social Security Administration, Seattle, WA, Attorneys for defendant.


ANN AIKEN, Chief District Judge.

Plaintiff brings this action pursuant to the Social Security Act (Act) to obtain judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying her application for supplemental security income (SSI) and disability insurance benefits (DIB) under the Act. The Commissioner's decision is affirmed and this case is dismissed.


Plaintiff argues that the ALJ erred by: 1) failing to consider that her impairments met the listing for inflammatory arthritis at step three of the evaluation process; 2) failing to. provide substantial evidence in support of his Residual Functional Capacity (RFC) finding; 3) failing to consider her testimony regarding her past relevant work and also failing to resolve the inconsistencies between the Dictionary of Occupational Titles (DOT) and the vocational expert's (VE) characterization of her past relevant work; and 4) failing to accept the opinion of her treating physician. Pl.'s Br. 19.

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 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). In reviewing the Commissioner's alleged errors, this 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).

I. Consideration of Plaintiff's Impairments at Step Three

Plaintiff argues that the ALJ erred at step three by failing to consider whether she met listing 14.09 for inflammatory arthritis from December 2009 through December 2011. Plaintiff makes two assertions in support of her argument. First, plaintiff argues that she suffers from inflammatory bowel disease (Crohn's disease) and "inflammatory arthritis involving peripheral joints may be associated with disorders such as inflammatory bowel disease." Pl.'s Br. 11-12.

Second, plaintiff argues that she meets the two criteria for Listing 14.09. Specifically, plaintiff argues that treatment notes following a surgery she had on her right thigh in December 2009 show that she meets the first criteria of Listing 14.09, which is a "deformity of a peripheral weight bearing joint." Pl.'s Br. 11. Moreover, plaintiff argues that she meets the second criteria of listing 14.09 because "physical therapy notes show that [she] was not able to ambulate effectively until discharge from physical therapy in December 2011." Id.

Step three requires the ALJ to consider the severity of the claimant's impairment by comparing the impairment to those listed in Appendix I of the Regulations (the listings). 20 C.F.R. Part 404, Subpt. P, App. I. The listings describe specific impairments of each major body system, which are "considered severe enough to prevent a person from doing any gainful activity." 20 C.F.R. §§ 404.1525(a), 416.925(a). Because the listings are "designed to operate as a presumption of disability that makes further inquiry unnecessary... the Secretary explicitly has set the medical criteria defining the listed impairments at a higher level of severity that the statutory standard." Sullivan v. Zelby, 493 U.S. 521, 531, (1990). Specifically, "the listings define impairments that would prevent an adult, regardless of [her] age, education, or work experience, from performing any gainful activity, not just substantial gainful activity." Id . (internal citation omitted).

Most of these impairments are "permanent or expected to result in death." Id . "For all others, the evidence must show that the impairment has lasted or is expected to last for a continuous period of at least 12 months." Id.

For a claimant to show that her impairment matches a listing, it must meet all the specified medical criteria. Zelby, 493 U.S. at 531. An impairment that manifests only some of those criteria, no matter how severely, does not qualify. See Social Security Ruling (SSR) 83-19. To be found disabled under Listing 14.09, a claimant must (1) suffer from persistent inflammation or persistent deformity of one or more peripheral weight bearing joints; and (2) the inflammation or deformity must cause an inability to ambulate effectively. Id . The inability to ambulate effectively "means an extreme limitation of the ability to walk, such as an impairment that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. 20 C.F.R. pt. 404, subpt. 1 §14.00 (C) (6).

Here, the record reveals that plaintiff's Crohn's disease was in remission during of the relevant time period. Specifically, in January 2012, plaintiff's treating physician, Dr. Jennifer Lietzke, M.D., wrote that plaintiff's "Crohn's disease was previously very active until about two years ago." Tr. 1013. Thus, according to plaintiff's own treating physician, plaintiff's Crohn's disease was no longer active in January 2010. Moreover, the record reveals that the ALJ also considered plaintiff's Crohn's disease, but similarly found that it was "in remission." Tr. 20. Consequently, because the evidence reveals that plaintiff's Crohn's disease was in remission, or at least "no longer very active, " beginning in January 2010, this ...

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