United States District Court, D. Oregon, Eugene Division
D. CLARKE United States Magistrate Judge.
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.
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.
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.
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.
in 2013, Plaintiff suffered a heart attack, which required
the insertion of two stints in his heart. 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.
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.
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.
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.
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).
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.
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.
the ALJ concluded Plaintiff was not disabled as defined by