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Larson v. Berryhill

United States District Court, D. Oregon, Eugene Division

March 15, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          MARK D. CLARKE United States Magistrate Judge.

         Plaintiff Timothy Joe Larson seeks judicial review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of the Social Security Administration denying his application for Disability Insurance Benefits and Supplemental Security Income pursuant to the Social Security Act. For the reasons below, the Commissioner's decision is REVERSED and REMANDED for further proceedings.


         Plaintiff was born August 2, 1967, and is currently 49 years old. Tr. 562. Plaintiff is married; has a high school education; and previously worked as a truck driver, lock and dam operator, sheet metal mechanic, and deckhand. Tr. 84, 91-92.

         In February 2009, Plaintiff fell on ice while working as a truck driver and sustained lower-back injuries. Tr. 334, 490. An MRI conducted on September 26, 2009, demonstrated Plaintiff suffered from degenerative disc disease "with a moderate right disc extrusion at that level. This caused right lateral recess stenosis and impingement of the L5 nerve root." Tr. 334. Following the injury and diagnosis, Plaintiff initially responded positively to epidural steroid injections; however, "subsequent [epidural] shots [were] less rewarding." Tr. 448. Plaintiff also attempted physical therapy, as well as home exercise, TR 334, 342-43, but physical therapy reportedly aggravated Plaintiffs lower back and was eventually discontinued. Tr. 490.

         Due to the ongoing and substantial back pain, on February 7, 2013, Plaintiff underwent a discectomy and arthroplasty; the surgical procedure replaced his L4 vertebral disc with a "large metal ball." Tr. 383-84, 490. Following surgery, Plaintiff reported decreased pain and that "the nerve pain that he had down the left leg" as a result of the lower-back injury "ha[d] been resolved." Tr. 440. Any reprieve from pain appears to have been temporary, however, and within two months of his surgery, he reported "constant symptoms over the low back region," "rate[d] at a maximum of 7/5/10. . . ." Tr. 477. He has since repeatedly complained of lower-back pain, significant pain in his right leg, and occasional pain in his left leg. Tr. 465.

         Later in 2013, Plaintiff suffered a heart attack, which required the insertion of two stints in his heart.[1] Tr. 45, 562. In February of 2014, Plaintiff visited his cardiologist, Dr. Nitin Patel, M.D., complaining of the same pre-heart-attack conditions, such as "dyspnea on exertion, shortness of breath, fatigue, chest pressure and arm discomfort." Tr. 503. Dr. Patel diagnosed Plaintiff with congestive heart failure. Tr. 518.

         Finally, on May 20, 2014, Joseph Stewart, MSW, EdD, performed a psychological assessment on Plaintiff pursuant to a request from Plaintiffs vocational rehabilitation counselor. Tr. 523. Dr. Stewart's conclusion was that Plaintiffs "attention and concentration" were "impaired" and that tests indicated he was "a person with significant depressive traits," as well as a person who "seem[ed] to be functioning with a distress syndrome which directly and negatively impact[ed] upon [his] ability to function adequately on a daily basis." Tr. 527.

         Up until 2012, Plaintiff attempted to work sporadically, though, as he put it, "working today mean[t] bed rest tomorrow." Tr. 491. Plaintiff was terminated from his most recent job as a truck driver in January 2013. Tr. 432. He has not worked since. Tr. 490.

         On January 29, 2013, Plaintiff filed an application for a period of disability and disability benefits, alleging disability beginning on November 15, 2012. Tr. 11. The claim was denied on May 15, 2013, and again on September 16, 2013. Tr. 11. Thereafter, Plaintiff filed a request for a hearing. Tr. 11. The hearing was held before an Administrative Law Judge ("ALJ") on September 10, 2014, and the ALJ issued a decision on November 13, 2014, finding Plaintiff was not disabled. Tr. 23. On March 8, 2016, the Appeals Council denied Plaintiffs request for review, making the ALJ's denial the Commissioner's final decision. Tr. 1. This timely appeal followed.


         A claimant is disabled if he or she is 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). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm 'r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing "substantial gainful activity"? 20 C.F.R. §§404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment "severe" under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless expected to result in death, an impairment is "severe" if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or must be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(H); 416.920(a)(4)(h). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or equal" one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis proceeds to the "residual functional capacity" ("RFC") assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's RFC. This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant work" with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 954. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55; Tackett, 180F.3dat 1099.


         Applying the five-step analysis, the ALJ found:

1. Plaintiff has not engaged in substantial gainful activity since November 15, 2012, the alleged onset date. (20 CFR § 404.1571 et seq.). Tr. 14.
2. Plaintiff has the following severe medically determinable impairments: coronary artery disease, status post myocardial infarction, status post stenting, chronic obstructive pulmonary disease, lumbar degenerative disc disease, status post artificial disc replacement, and an affective disorder. (20 CFR § 404.1520(c)). Tr. 14.
3. Plaintiff does not have an impairment or a combination of impairments that meet or medically equal the severity of one of the listed impairments in 20 CFR Pt. 404, Subpt. P, App. 1. (20 CFR §§ 404.1520(d), 404.1525 & 404.1526). Tr. 14.
a. Plaintiff has the RFC to perform light work as defined in 20 CFR § 404.1567(b), except Plaintiff is limited to occasionally stooping, crouching, crawling, kneeling, and climbing ramps or stairs, and should never climb ladders, ropes, or scaffolds. He must also avoid concentrated exposure to pulmonary irritants, such as fumes, odors, dust, and gases, as well as poorly ventilated areas. Plaintiff must further avoid concentrated exposure to dangerous machinery with moving mechanical parts and unprotected heights that are high or exposed. Finally, he is limited to performing only simple, routine, and repetitive tasks with occasional interaction with the public, co-workers, and supervisors, but he can work in the vicinity of others. Tr. 16.
4. Plaintiff is unable to perform any past relevant work. (20 CFR § 404.1565). Tr. 22.
5. After considering Plaintiffs age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that he can perform. (20 CFR §§ 404.1569 and 404.1569(a)). Those jobs include parking lost cashier and document preparer. Tr. 22-23.

         Consequently, the ALJ concluded Plaintiff was not disabled as defined by ...

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