United States District Court, D. Oregon, Portland Division
CHERYL A. STEIN, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
Yim You, United States Magistrate Judge
Cheryl A. Stein ("Stein"), seeks judicial review of
the final decision by the Commissioner of Social
Security ("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
protectively filed for DIB and SSI on May 4, 2012, alleging a
disability onset date of July 16, 2010. Tr. 16.  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).
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.
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.
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.
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.
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
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),
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.
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.
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).
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.
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).
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.
two, the ALJ determined that Stein has the severe impairments
of cervical degenerative disc disease, obesity, and
headaches. Tr. 18.
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 ...