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Bailey v. Colvin

United States District Court, D. Oregon

July 22, 2015

FRED EUGENE BAILEY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

KATHRYN TASSINARI, ROBERT A. BARON, Eugene, OR, Attorneys for Plaintiff.

S. AMANDA MARSHALL, United States Attorney, RONALD K. SILVER, Assistant United States Attorney, Portland, OR, DAVID MORADO, Regional Chief Counsel, MARTHA A. BODEN, Special Assistant United States Attorney Office of the General Counsel Social Security Administration, Seattle, WA, Attorneys for Defendant.

OPINION AND ORDER

ANNA J. BROWN, District Judge.

Plaintiff Fred Eugene Bailey seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's application for Supplemental Security Income (SSI) under Title XVI and for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. This Court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. §§ 405(g) and 1383 (c) (3).

Following a review of the record, the Court REVERSES the decision of the Commissioner and REMANDS this matter for the calculation and payment of benefits pursuant to sentence four, 42 U.S.C. § 405(g).

ADMINISTRATIVE HISTORY

Plaintiff first filed applications for DIB and SSI on December 14, 2006, and alleged a disability onset date of August 25, 2005. Tr. 223.[1] The applications were denied initially and on reconsideration. Tr. 109, 120. Plaintiff requested a hearing, and an Administrative Law Judge (ALJ) held a hearing on June 24, 2009. Tr. 52. At the hearings Plaintiff was represented by an attorney. Plaintiff and a vocational expert (VE) testified. Tr. 52.

The ALJ issued a decision on November 2, 2009, in which she found Plaintiff was not disabled. Tr. 92. The Appeals Council vacated that decision, consolidated it with a subsequent claim, and remanded for further proceedings. Tr. 106. On June 14, 2012, the ALJ held a hearing on the consolidated claims. Tr. 52. On October 15, 2012, the ALJ issued a decision finding Plaintiff is not disabled. Tr. 15. On February 27, 2014, the Appeals Council denied Plaintiff's request for review, and that decision became the final decision of the Commissioner. Tr. 1. See also Sims v. Apfel, 530 U.S. 103 (2000).

On May 5, 2014, Plaintiff filed a Complaint in this Court seeking review of the Commissioner's decision.

BACKGROUND

Plaintiff was born in September, 1958, and was 46 years old on his alleged onset date of August 25, 2005. He graduated from Gold Beach Union High School in 1977, but his transcript does not contain any record of classes taken during his tenth-grade year. Tr. 265-66.

Plaintiff alleges disability due to a combination of mental and physical impairments. Tr. 152-55.

STANDARDS

The initial burden of proof rests on the claimant to establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). To meet this burden, a claimant must demonstrate his inability "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). The ALJ must develop the record when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)).

The district 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 as a whole. 42 U.S.C. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Molina, 674 F.3d. at 1110-11 (quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). It is more than a mere scintilla [of evidence) but less than a preponderance. Id. (citing Valentine, 574 F.3d at 690).

The ALJ is responsible for determining credibility, resolving conflicts in the medical evidence, and resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The court must weigh all of the evidence whether it supports or detracts from the Commissioner's decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even when the evidence is susceptible to more than one rational interpretation, the court must uphold the Commissioner's findings if they are supported by inferences reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The court may not substitute its judgment for that of the Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).

DISABILTY EVALUATION

At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a) (4) (i), 416. 920 (a) (4) (i). See also Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724 (th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520{a) (4) (ii), 416.920{a) (4) (ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner determines the claimant's impairments meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a) (4) {iii), 416.920(a) (4) (iii). See also Keyser, 648 F.3d at 724. The criteria for the listed impairments, known as Listings, are enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed Impairments).

If the Commissioner proceeds beyond Step Three, she must assess the claimant's residual functional capacity (RFC). The claimant's RFC is an assessment of the sustained, work-related physical and mental activities the claimant can still do on a regular and continuing basis despite his limitations. 20 C.F.R. §§ 404.1520(e), 416.920(e). See also Social Security Ruling (SSR) 96-8p. "A regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent schedule." SSR 96-8p, at *1. In other words, the Social Security Act does not require complete incapacity to be disabled. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

At Step Four the claimant is not disabled if the Commissioner determines the claimant retains the RFC to perform work he has done in the past. 20 C.F.R. §§ 404.1520(a) (4) (iv), 416. 920 (a) (4) (iv), See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine whether the claimant is able to do any other work that exists in the national economy. 20 C.F.R. §§ 404.1520(a) (4) (v), 416.920(a) (4) (v). See also Keyser, 648 F.3d at 724-25. Here the burden shifts to the Commissioner to show a significant number of jobs exist in the national economy that the claimant can perform. Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). The Commissioner may satisfy this burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines set forth in the regulations at 20 C.F.R. part 404, subpart P, appendix 2. If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1520 (g) (1), 416. 920 (g) (1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in substantial gainful activity since his August 25, 2005, onset date. Tr. 13.

At Step Two the ALJ found Plaintiff "has the following severe impairments: mild mental retardation, mild degenerative disc disease of the lumbar spine, with chronic lumbar strain; moderate cervical degenerative disc disease as of May 2012; and left shoulder impingement." Tr. 13.

At Step Three the ALJ determined Plaintiff's impairments do not equal the severity of a listed impairment. At Step Three the ALJ "gave particular consideration" to Listings 1.02 (major dysfunction of a joint) and 1.04 (disorders of the spine) and also considered Listing 12.05 (intellectual disability). Tr. 14.

At Step Four the ALJ assessed Plaintiff's RFC and found Plaintiff could perform a range of light work with the following limitations:

[H]e must avoid climbing ladders, ropes, or scaffolds; he must avoid working above shoulder level with the left arm; he can frequently balance and climb ramps/stairs; he can occasionally crouch, stoop, or crawl.
Because of his cognitive deficits, he can understand and carry out no more than simple instructions. He should avoid workplace hazards, such as unprotected heights or large moving equipment.

Tr. 16. The ALJ found Plaintiff cannot perform any past work. Tr. 20.

At Step Five the ALJ found Plaintiff is capable of performing other work, including hand stuffer, table worker, and sorter. Tr. 21. Accordingly, the ALJ found Plaintiff is not disabled.

THE MEDICAL EVIDENCE

I. Medical Evidence Resulting from ...


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