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Otto v. Commissioner Social Security Administration

United States District Court, D. Oregon

July 2, 2015


SHARON D. MAYNARD, Bennett, Hartman, Morris & Kaplan, LLP, Portland, OR, Attorney for Plaintiff.

RONALD K. SILVER, Assistant United States Attorney, District of Oregon Portland, OR, COURTNEY M. GARCIA, Social Security Administration Office of the General Counsel, Seattle, WA, Attorneys for Defendant.


MALCOLM F. MARSH, District Judge.

Plaintiff Daniel Charles Otto seeks judicial review of the final decision of the Commissioner of Social Security denying his applications for a period of disability and disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401-403, and application for Supplemental Security Income (SSI) disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, I affirm in part and reverse in part.


Plaintiff protectively filed applications for DIB and SSI on March 31, 2010, alleging disability beginning February 26, 2009, due to severe cervical and lumbar spinal disease, obesity, left shoulder strain, and bilateral hand impairments. Plaintiff's claims were denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a hearing on July 17, 2012, at which plaintiff appeared with her attorney and testified. A vocational expert, Nancy E. Bloom, also appeared at the hearing and testified. On August 20, 2012, the ALJ issued an unfavorable decision. The Appeals Council denied plaintiff's request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review.

Plaintiff was born on December 3, 1955, and was 53 years old on his alleged onset of disability date, and 56 years old on the date of the ALJ's adverse decision. Plaintiff completed high school and some college courses, and has past relevant work as a school bus driver, mover, tractor-trailer driver, census worker, and census field operations manager.


The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520; 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).

The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through June 30, 2014. A claimant seeking DIE benefits under Title II must establish disability on or prior to the last date insured. 42 U.S.C. § 416 (I) (3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since his alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe impairments: obesity, foraminal stenosis and anterolisthesis/ spondylolisthesis of L5-S1, degenerative disc disease of the cervical spine status post diskectomy and fusion, and history of left (non-dominant) shoulder strain. At step three, the ALJ found that plaintiff's impairments, or combination of impairments, did not meet or medically equal a listed impairment.

The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform light work, however, plaintiff can do no more than four hours of standing or walking in an eight hour workday; he can do no more than occasional pushing, pulling and overhead reaching with the left upper extremity; he has postural limitations such that he can engage in tasks requiring crouching, crawling, stooping, kneeling, balancing or climbing no more than occasionally.

At step four, the ALJ found that plaintiff is capable of performing his past relevant work as a census enumerator. The ALJ made alternative findings at step five, concluding that considering plaintiff's age, education, work experience, and residual functional capacity, jobs exist in significant numbers in the national economy that plaintiff can perform, such as office helper, cashier II, and small products assembler. Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from February 26, 2009 through the date of the decision.


On appeal to this court, plaintiff contends the following errors were committed: (1) the ALJ failed to properly evaluate his testimony; (2) the ALJ failed to properly evaluate the lay testimony of his wife Denise M. Otto; and (3) the ALJ failed to find him disabled as of his 55th birthday as directed under the Medical-Vocational Guidelines (the grids), 20 C.F.R. Part 404, Subpart P. Appendix 2, §§ 200.00 - 204.00.

The Commissioner contends that the ALJ did not err in discrediting plaintiff and the lay testimony, and properly determined that plaintiff could perform his past relevant work. Additionally, the Commissioner contends that even if the ALJ erred at step four, it was harmless because the ALJ made alternative step five findings that are supported by substantial evidence.


The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405 (g); Berry v. As true, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hill, 698 F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. ...

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