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Kilbourne v. Berryhill

United States District Court, D. Oregon

April 11, 2017

KEITH KILBOURNE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Merrill Schneider SCHNEIDER KERR LAW OFFICES Attorney for Plaintiff.

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon Janice E. Hebert ASSISTANT UNITED STATES ATTORNEY Lars J. Nelson SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration Attorneys for Defendant.

          OPINION & ORDER

          Marco A. Hernandez United States District Judge.

         Plaintiff Keith Kilbourne brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). I affirm the Commissioner's decision.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB on April 25, 2005, alleging an onset date of July 1, 2004. See Tr. 38. His application was denied initially and on reconsideration. Tr. 118-22 (Initial); Tr. 114-16 (Reconsideration). On February 8, 2007, Plaintiff appeared via video, for a hearing before an Administrative Law Judge (ALJ). Tr. 1259-93. On May 23, 2007, the ALJ found Plaintiff not disabled. Tr. 59-71. The Appeals Council granted Plaintiff's request for review, vacated the ALJ's decision, and remanded for a new hearing. Tr. 167-70.

         On November 19, 2010, Plaintiff appeared with counsel for the remand hearing. Tr. 1217-37. In a December 10, 2010 decision, the ALJ found Plaintiff not disabled. See Tr. 16. Plaintiff again requested review by the Appeals Council. This time, the Appeals Council remanded the claim for a new hearing due to the loss of the previous hearing's recording. Tr. 17.

         A new hearing was held April 15, 2014. Tr. 1238-58. On May 22, 2014, the ALJ found Plaintiff not disabled. Tr. 13-37. The Appeals Council denied review. Tr. 9-12.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on having post-traumatic stress disorder (PTSD), hepatitis C, hepatitis B, and attention deficit hyperactivity disorder (ADHD). Tr. 743. At the time of the 2014 hearing, he was sixty-seven years old. Tr. 1242. He has a GED and has past relevant work experience as hardware sales representative. Tr. 1242, 1251.

         SEQUENTIAL DISABILITY EVALUATION

         A claimant is disabled if 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), 1382c(3)(a).

         Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

         In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether plaintiff's impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. ยงยง 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the ...


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