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Kirkruff v. Berryhill

United States District Court, D. Oregon, Eugene Division

March 28, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security


          Ann Aiken United States District Judge.

         Plaintiff Ryan W, Kirkruff brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"), The Commissioner denied plaintiffs applications for Disability Insurance Benefits ("DIB"). For the reasons set forth below, the Commissioner's decision is affirmed.


         On April 22, 2009, plaintiff applied for DIB, alleging disability beginning May 11, 2005. Tr. 286. Plaintiff alleged he suffered from severe back and leg pain due to degenerative disc disease and fatigue due to adrenal insufficiency. Tr. 312. His application was denied initially and upon reconsideration. Tr. 21. On February 22, 2011, plaintiff appeared at his first disability healing. Tr. 58-98. Following that hearing, the ALJ found him not disabled and denied his claim. Tr. 131-41. The Appeals Council remanded because the ALJ had not adequately explained his decision to give little weight to the opinion of Dr. Thorsen, a psychologist. Tr. 151-52. On May 16, 2013, plaintiff appeared at his second disability hearing. Tr. 100-23. The ALJ held the record open to permit plaintiff to submit treatment records from Dr. Thorsen. Tr. 120. At a supplemental hearing on January 14, 2014, plaintiffs non-attorney representative explained that Dr. Thorsen had been unresponsive to requests to produce those records. Tr. 44-57. The ALJ issued a subpoena, but Dr. Thorsen never produced the records. Tr. 48-49. On May 7, 2014, the ALJ found plaintiff not disabled. Tr. 21-36, The Appeals Council denied review, and plaintiff filed a complaint in this Court. Tr. 1.


         The district court must affirm the Commissioner's decision if it is based upon proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Gutierrez v. Comm'r of Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014) (quotation marks omitted). The court must weigh "both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may not substitute its judgment for that of the Commissioner." Edhmd v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).


         The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff 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 last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A).

         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. § 404.1502(a)(4). At step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged disability onset date. Tr. 24; 20 C.F.R. §§ 404.1520(a)(4)(i), (b). At step two, the ALJ found plaintiff had the following severe impairments: "chronic pain syndrome secondary to lumbar degenerative disc disease, status post microlaminectomy, discectomy and microdiscectomy x2 at L4-L5, without significant central canal or foraminal stenosis; adrenal insufficiency; hypogonadism; generalized anxiety disorder (GAD); personality disorder NOS; [and] dysthymic disorder[.]" Tr, 24; 20 C.F.R. §§ 404.1520(a)(4)(h), (c). At step three, the ALJ determined plaintiffs impairments, whether considered singly or in combination, did not meet or equal "one of the listed impairments" that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Tr. 24; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).

         The ALJ found plaintiff retained the residual functional capacity to

perform a range of light exertion work as defined in 20 [C.F.R. §] 404 1567(b). He could lift 20 pounds occasionally and 10 pounds frequently. He was able to sit, stand and walk for each 30 minutes at a time. He was able to sit for a total of four hours and to stand/walk for a total of four hours, for combined total of eight hours of activity. He required the option to sit or stand at will, while still completing essential tasks. Mr. Kirkruff occasionally could crouch, stoop, crawl, kneel, and climb ramps/stairs, He could not climb ladders, ropes, or scaffolds. He could never be exposed to hazards such as unprotected heights or large moving equipment. Mr, Kirkruff had the ability to understand, remember and carry out simple instructions in a setting with no public contact, no teamwork assignments, and no strict production pace requirements (defined as no hourly rate so long as adequate work is completed by the end of the workday).

Tr. 26; 20 C.F.R. § 404.1520(e). At step four, the ALJ concluded plaintiff would be unable to perform any past relevant work. Tr. 35; 20 C.F.R. § 404.1520(a)(4)(iv), (f). At step five, the ALJ found plaintiff could perform several jobs existing in significant numbers in the national economy: label coder, collator, and hand-packager. Tr. 35; 20 C.F.R. §§ 404.1520(a)(4)(v), (g). Accordingly, the ALJ found plaintiff not disabled and denied his application for benefits, Tr. 36.


         Plaintiff asserts the ALJ erred in two ways. First, plaintiff challenges the ALJ's decision to give less than full weight to the opinions of Dr. Ganter, plaintiffs treating primary care physician; Dr. Thorsen, the psychologist whose opinion was the basis for the Appeals Council's remand; and Dr. Stowell, a consultative physician. Second, plaintiff contends the ALJ erred in finding plaintiffs testimony about the severity of his pain and other symptoms not credible, Because the weight of plaintiffs symptom testimony affects the analysis of the doctors' opinions, I address the symptom statements first, I then turn to plaintiffs arguments regarding the medical opinions.

         I. Plaintiffs Subjective ...

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