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Kelly v. Colvin

United States District Court, D. Oregon

June 4, 2015

FRED KELLY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Merrill Schneider, SCHNEIDER, KERR & GIBNEY LAW OFFICES, Portland, Oregon, Attorney for Plaintiff.

Billy J. Williams, ACTING UNITED STATES ATTORNEY, District of Oregon, Ronald K. Silver, ASSISTANT UNITED STATES ATTORNEY, Portland, Oregon. Lars J. Nelson, ASSISTANT REGIONAL COUNSEL Office of the General Counsel - Region VIII Social Security Administration, Denver, Colorado, Attorneys for Defendant.

OPINION & ORDER

MARCO A. HERNANDEZ, District Judge.

Plaintiff Fred Kelly brings this action seeking judicial review of the Commissioner's final decision to deny 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 affirm the Commissioner's decision.

PROCEDURAL BACKGROUND

Plaintiff applied for SSI on February 3, 2011, alleging an onset date of August 1, 2010. Tr. 17, 197-205. His application was denied initially and on reconsideration. Tr. 84-97, 98-111.

On December 28, 2012, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 37-83. On March 1, 2013, the ALJ found Plaintiff not disabled. Tr. 14-36. The Appeals Council denied review. Tr. 1-4.

FACTUAL BACKGROUND

Plaintiff alleges disability based on L5-S1 disc desiccation, Hepatitis C, rheumatoid arthritis, bipolar disorder, and post-traumatic stress disorder. Tr. 235. At the time of the hearing, he was forty-five years old. Tr. 43. He has a GED. Tr. 45. He has past relevant work experience as a house painter and construction painter. Tr. 30. 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.

SEQUENTIAL DISABILITY EVALUATION

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.

THE ALJ'S DECISION

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since his February 3, 2011 application date. Tr. 19. Next, at step two, the ALJ determined that Plaintiff has severe impairments of degenerative disc disease, depressive disorder not otherwise specified, Hepatitis C, osteoarthritis, and alcohol abuse. Tr. 19. However, at step three, the ALJ determined that Plaintiff's impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 20-21.

At step four, the ALJ concluded that Plaintiff has the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 416.967(b) except he can lift less than ten pounds frequently. Tr. 21. He can stand and walk for up to six hours in an eight-hour workday. Id. He can sit for at least six hours in an eight-hour workday. Id. He can frequently climb ramps and stairs but he can never climb ladders, ropes, or scaffolds. Id. He can frequently perform balancing, stooping, kneeling, crouching, and crawling. Id. He must avoid concentrated exposure to respiratory irritants such as fumes, odors, dust, and gases. Id. He cannot tolerate exposure to heights and dangerous machinery. Id. He can remember and understand simple tasks and instructions consistent with jobs with a specific vocational preparation score of one or two. Id. He can have only brief, superficial interaction with the general public and no ongoing mediation or negotiation. Id. He can work near coworkers but cannot engage in teamwork. Id. He is limited to simple, work-related decisions with few workplace changes. Id. He needs a sit-stand option. Id. He can sit for one hour, then needs to stand for a few minutes, and then can return to the other position without stop in production level. Id.

With this RFC, the ALJ determined that Plaintiff is unable to perform any of his past relevant work. Tr. 29-30. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the economy such as small products assembler, bottling line attendant, and ...


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