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Stein v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

April 6, 2017

CHERYL A. STEIN, Plaintiff,


          Youlee Yim You, United States Magistrate Judge


         Plaintiff, Cheryl A. Stein ("Stein"), seeks judicial review of the final decision by the Commissioner of Social Security[1] ("Commissioner") denying her applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("SSA"), 42 USC §§ 401-433 (West 2015), and Supplemental Security Income ("SSI") under Title XVI of the SSA, 42 USC §§ 1381-1383f (2012). This court has jurisdiction to review the Commissioner's decision pursuant to 42 USC § 405(g) and § 1383(c)(3). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c) (2012). For the reasons set forth below, the Commissioner's decision is AFFIRMED.


         Stein protectively filed for DIB and SSI on May 4, 2012, alleging a disability onset date of July 16, 2010. Tr. 16. [2] Her application was denied initially and on reconsideration. Tr. 16. On January 8, 2014, a hearing was held before Administrative Law Judge ("ALJ") Wynne O'Brien-Persons. Tr. 16. The ALJ issued a decision on January 30, 2014, finding Stein not disabled. Tr. 26-27. The Appeals Council denied a request for review on March 24, 2015. Tr. 1. Therefore, the ALJ's decision is the Commissioner's final decision subject to review by this court. 20 CFR §§ 404.981, 416.1481, 422.210 (2016).


         Born in 1967, Stein was 46 at the time of the hearing before the ALJ. Tr. 25. She has a lOth-grade education and past relevant work experience as a child monitor, hand packager, and packaging supervisor. Tr. 25, 62, 235. Stein alleges that she is unable to work due to the combined impairments of cervical disc disease, irritable bowel syndrome ("IBS"), and chronic, severe foot pain. Tr. 16, 192, 199, 234.


         Stein underwent a surgical discectomy and spinal fusion in 2008. Tr. 318. The X-rays immediately after surgery showed good position to the fusion and resection of the disk herniation. Tr. 307. Stein alleges she suffered from pain radiating down her arms, as well as in her neck and upper shoulders. Tr. 314. In 2010, Stein saw a medical practitioner alleging ongoing neck pain for the last year. Tr. 318. Stein was sent for an X-ray and MRI. Tr. 315, 318. The MRI revealed a central annular distention in the spinal column, without frank disc herniation and without cord compression. Tr. 307. The MRI also revealed that her spinal fusion was still solid. Id. The neurosurgical specialist who treated her did not send her to physical therapy because it appeared she was doing well with her current level of symptoms. Id.

         Stein also complained of anxiety and depression, but testified she did not feel she needed psychiatric medication and was not taking any. Tr. 56, 313. She also suffers from panic attacks, swings between crying and raging, and has difficulty sleeping. Tr. 314.

         Stein is obese and drinks 12 or more beers a day. Tr. 328. Stein complains of constant bilateral foot pain while walking. Tr. 327. Stein alleges IBS and that she has diarrhea and goes to the bathroom at least ten times a day. Tr. 400. At various times through the period at issue, Stein has taken Flexeril, Vicodin, and Venlafaxine. Tr. 319, 328, 350.


         Disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 USC § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 CFR §§ 404.1520, 416.920 (2016); Tackettv. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).

         At step one, the ALJ determines if the claimant is performing substantial gainful activity. If so, the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(i) & (b), 416.920(a)(4)(i)&(b).

         At step two, the ALJ determines if the claimant has "a severe medically determinable physical or mental impairment" that meets the 12-month durational requirement. 20 CFR §§ 404.1520(a)(4)(ii) & (c), 416.909, 416.920(a)(4)(ii) & (c). Absent a severe impairment, the claimant is not disabled. Id.

         At step three, the ALJ determines whether the severe impairment meets or equals an impairment "listed" in the regulations. 20 CFR §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d); 20 CFRPt. 404, Subpt. P, App. 1 (Listing of Impairments). If the impairment is determined to meet or equal a listed impairment, then the claimant is disabled.

         If adjudication proceeds beyond step three, the ALJ must first evaluate medical and other relevant evidence in assessing the claimant's residual functional capacity ("RFC"). The claimant's RFC is an assessment of work-related activities the claimant may still perform on a regular and continuing basis, despite the limitations imposed by his or her impairments. 20 CFR §§ 404.1520(e), 416.920(e); Social Security Ruling ("SSR") 96-8p, 1996 WL 374184 (July 2, 1996).

         At step four, the ALJ uses the RFC to determine if the claimant can perform past relevant work. 20 CFR §§ 404.1520(a)(4)(iv) & (e), 416.920(a)(4)(iv) & (e). If the claimant cannot perform past relevant work, then at step five, the ALJ must determine if the claimant can perform other work in the national economy. 20 CFR §§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) & (g); Bowen v. Yuckert, 482 U.S. 137, 142 (1987); Tackett, 180 F.3d at 1099.

         The initial burden of establishing disability rests upon the claimant. Tackett, 180 F.3d at 1098. If the process reaches step five, the burden shifts to the Commissioner to show that jobs exist in the national economy within the claimant's RFC. Id. If the Commissioner meets this burden, then the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) & (g), 416.960(c).


         At step one, the ALJ concluded that Stein has not engaged in substantial gainful activity since July 16, 2010, the date that the application was protectively filed. Tr. 18.

         At step two, the ALJ determined that Stein has the severe impairments of cervical degenerative disc disease, obesity, and headaches. Tr. 18.

         At step three, the ALJ concluded that Stein does not have an impairment or combination of impairments that meets or equals any of the listed impairments. Tr. 19. The ALJ found that Stein has the RFC to perform sedentary work, specifically:

The claimant is able to lift and/or carry ten pounds. She is able to stand and/or walk for two hours and sit for six hours in an eight hour workday with normal breaks. She is able to perform work that allows her to change positions every thirty minutes. She is able to push and/or pull with her bilateral upper extremities frequently. She is able to crawl frequently. She is able to climb ladders, ropes, or scaffolds occasionally. She is able to perform work that does not include repetitive rotation, flexion, or extension of the neck. She is able to reach overhead bilaterally with her upper extremities on an occasional basis. She is able to grasp with her bilateral hands on a ...

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