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Upham v. Berryhill

United States District Court, D. Oregon

February 2, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          Sara L. Gabin, P.C., Attorney at Law Attorney for Plaintiff

          Billy J. Williams United States Attorney District of Oregon Janice E. Hebert Assistant United States Attorney, Thomas M. Elsberry Special Assistant United States Attorney Attorneys for Defendant


          Garr M. King United States District Judge

         Plaintiff Randy Allen Upham brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner denying Upham's application for supplemental security income benefits (“SSI”). I reverse the decision of the Commissioner and remand for further proceedings.


         Upham filed an application for SSI on May 17, 2011, alleging disability onset as of July 1, 2009. The application was denied initially and upon reconsideration. After a timely request for a hearing, Upham, represented by counsel, appeared and testified before an Administrative Law Judge (“ALJ”) on July 16, 2013.

         On July 24, 2013, the ALJ issued a decision finding Upham was not disabled within the meaning of the Act and therefore not entitled to benefits. This decision became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ on July 2, 2015.


         The Social Security Act (the “Act”) provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security income benefits may be available to individuals who are age 65 or over, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a).

         The claimant must demonstrate an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to cause death or to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).

         The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for either DIB or SSI due to disability. The evaluation is carried out by the ALJ. The claimant has the burden of proof on the first four steps. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ determines whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(b) and 416.920(b). If the claimant is engaged in such activity, disability benefits are denied. Otherwise, the ALJ proceeds to step two and determines whether the claimant has a medically severe impairment or combination of impairments. A severe impairment is one “which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) and 416.920(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied.

         If the impairment is severe, the ALJ proceeds to the third step to determine whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d) and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant performed in the past. If the claimant is able to perform work she performed in the past, a finding of “not disabled” is made and disability benefits are denied. 20 C.F.R. §§ 404.1520(f) and 416.920(f).

         If the claimant is unable to perform work performed in the past, the ALJ proceeds to the fifth and final step to determine if the claimant can perform other work in the national economy in light of his age, education, and work experience. The burden shifts to the Commissioner to show what gainful work activities are within the claimant's capabilities. Parra, 481 F.3d at 746. The claimant is entitled to disability benefits only if he is not able to perform other work. 20 C.F.R. §§ 404.1520(g) and 416.920(g).


         The court must affirm a denial of benefits if the denial is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” and is more than a “mere scintilla” of the evidence but less than a preponderance. Id. (internal quotation omitted). The court must uphold the ALJ's findings if they “are supported by inferences reasonably drawn from the record[, ]” even if the evidence is susceptible to multiple rational interpretations. Id.


         The ALJ identified the following impairments as severe: right rotator cuff tear, antisocial personality disorder and alcohol dependence/abuse in reported remission. The ALJ found these impairments, either singly or in combination, did not meet or medically equal the requirements of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ concluded Upham retained the residual functional capacity (“RFC”) to perform modified light work. Specifically, although he has no limitations in standing, walking or sitting, he is able to lift up to 20 pounds occasionally and ten pounds frequently with the left upper extremity. Further, Upham can only use his right dominant arm as a guide for those weights. He can lift up to ten pounds occasionally and less than ten pounds frequently with his right arm. He cannot lift his upper right arm above horizontal level. He can only occasionally handle, finger, and feel with his right upper extremity. He can never climb ladders, ropes or scaffolding, and may never crawl. He can never work in teams and he can only have incidental public contact.

         Based on this RFC, and relying on the testimony of a vocational expert (“VE”), the ALJ concluded Upham could not perform his past work but could perform other work in the national economy, such as paper sorter/recycler and price marker. As a result, the ALJ concluded Upham was not disabled under the terms of the Act.


         I incorporate the facts relevant to Upham's arguments in my analysis below.


         Upham challenges the ALJ's failure to include diabetic neuropathy and ADHD as severe impairments, believes the ALJ should have found his impairments equaled a listing, and argues the ALJ erred in his evaluation of medical opinions and in his evaluation of Upham's symptom testimony. Upham asserts that as a result of these errors the ALJ's RFC was flawed. Finally, Upham relies on medical records he submitted to the Appeals Council as further support for the severity of his neuropathy, inability to use his right arm, and the development of other impairments.

         I. Sever ...

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