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Harberts v. Commissioner of Social Security Administration

United States District Court, D. Oregon

July 9, 2015


PHILIP M. LEBENBAUM, Hollander Lebenbaum & Gannicott, Portland, OR, Attorney for Plaintiff.

RONALD K. SILVER, Assistant United States Attorney, Portland, OR, ALEXIS L. TOMA, Social Security Administration, Office of the General Counsel, Seattle, WA, Attorneys for Defendant.


MALCOLM F. MARSH, District Judge.

Plaintiff Laurie M. Harberts seeks judicial review of the final decision of the Commissioner of Social Security denying her application for 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 the final decision of the Commissioner.


Plaintiff protectively filed an application for DIB on December 16, 2010 and an application for SSI on December 16, 2011, alleging disability beginning November 29, 2009, due to depression; hydro thyroid disease; bipolar one; severe anxiety and panic attacks; low metabolism; and muscle spasms. Plaintiff meets the insured status requirements for a DIB application through December 31, 2014.

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 May 16, 2013, at which plaintiff appeared with her attorney and testified. A vocational expert, C. Kay Wise, and plaintiff's sister, Carrie Leigh DeSoto also appeared at the hearing and testified. On June 6, 2013, 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.

Born in 1957, plaintiff was 56 years old on the date of the ALJ's unfavorable decision. Plaintiff has a ninth grade education. Plaintiff has past relevant work as a seafood clerk and smoker operator.


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. § 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. 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).

At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since November 29, 2009. At step two, the ALJ found that plaintiff had the following severe impairments: anxiety; panic disorder with agoraphobia; depression; post-traumatic stress disorder (PTSD); and cannabis dependence. At step three, the ALJ found that plaintiff's impairment or combination of impairments, did not meet or medically equal a listed impairment.

The ALJ assessed plaintiff with a residual functional capacity (RFC) to a full range of work at all exertion levels as defined in 20 C.F.R. § 404.1567 but with the following additional nonexertion limitations. Plaintiff can learn, remember, and perform simple, routine and repetitive work tasks, involving simple one and two step work instructions. Plaintiff can perform low-stress work defined as jobs with no strict production pace, few workplace changes, and no "over the shoulder" supervision. Plaintiff can have occasional contact with supervisors and coworkers, but should have minimal to no contact with the public and requires ready access to restroom facilities in the workplace.

At step four, the ALJ found that plaintiff is unable to perform her past relevant work. At step five, the ALJ concluded 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 soft goods sorter, cleaner II, and box filler. Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from November 29, 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 plaintiff's testimony; and (2) the ALJ erred in ...

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