United States District Court, D. Oregon
Merrill Schneider SCHNEIDER KERR LAW OFFICES Attorney for
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
OPINION & ORDER
A. Hernandez United States District Judge.
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
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.
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.
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.
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.
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. §§
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.
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.
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.
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. §§ 404.1520(e) &
(f), 416.920(e) & (f). If the Commissioner meets his
burden and proves that the ...