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Smith v. Berryhill

United States District Court, D. Oregon

April 26, 2017

TERRY D. SMITH Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security,[1] Defendant.

          Robyn M. Rebers, Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Janice E. Herbert, Assistant United States Attorney, United States Attorney's Office; Alexis L. Toma, Special Assistant United States Attorney, Office Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon United States District Judge.

         Terry D. Smith (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”). For the following reasons, the Commissioner's decision is AFFIRMED.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means “more than a mere scintilla but less than a preponderance.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

         Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.

         BACKGROUND

         A. Plaintiff's Application

         Plaintiff protectively filed an application for DIB on February 10, 2010, alleging disability beginning November 17, 2008. AR 12. He was 37 years old as of the claimed disability onset date. Plaintiff alleged disability due to “lower back problems.” AR 67. The Commissioner denied the application initially and upon reconsideration. Plaintiff thereafter requested a hearing before an Administrative Law Judge (“ALJ”). AR 12. An administrative hearing was held by ALJ John Bauer (“ALJ Bauer”) on May 23, 2012. Id. ALJ Bauer subsequently ruled that Plaintiff was not disabled under the Social Security Act. AR 24. Plaintiff timely appealed the final decision of the Commissioner to the United States District Court (Smith v. Commissioner, Case No. 2:13-cv-1591-PK). Pursuant to a stipulation of the parties, U.S. Magistrate Judge Paul Papak remanded the case for further administrative proceedings on May 14, 2014. AR 832-33.

         The Court's order, which was proposed by the parties, included, among others, provisions ordering the ALJ upon remand to: “(4) further consider the claimant's subjective complaints, pursuant to [Social Security Rule] SSR 96-7p; (5) expressly evaluate the treating, examining, and non-examining medical source opinions in the updated record and explain the reason for the weight accorded this opinion evidence.” Id.; see also Case No. 2:13-cv-1591-PK Docket, ECF 18. The Appeals Council then vacated the final decision and remanded the case to a new ALJ to resolve the issues of the consistency of the vocational expert's testimony with the Dictionary of Occupational Titles and whether Plaintiff s diagnosed depression was a medically determinable or severe impairment. AR 841-42. The Appeals Council, among other things, also ordered the new ALJ to:

. Further evaluate the claimant's subjective complaints and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms (20 CFR 404.1529) and Social Security Ruling 96-7p.
. Give further consideration to the treating and nontreating source opinions pursuant to the provisions of 20 CFR 404.1527 and Social Security Rulings 96-2p and 96-5p and nonexamining source opinions pursuant to the provisions of 20 CFR 404.1527(e) and Social Security Ruling 96-6p, and explain the weight given to such evidence. As appropriate, the [ALJ] may request the treating and nontreating source to provide additional evidence and/or further clarification of the opinion (20 CFR 404.1512).

AR 842.

         A second administrative hearing was held by ALJ Ted Neiswanger (“the ALJ”) on December 8, 2015. AR 715. The ALJ subsequently ruled that Plaintiff was not disabled under the Social Security Act. AR 731. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. AR 821. Plaintiff now seeks judicial review of that decision.

         B. The Sequential Analysis

         A claimant is disabled if he or she is 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). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment “severe” under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or equal” one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's “residual functional capacity” (“RFC”). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R.§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966 (describing “work which exists in the national economy”). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.

         C. The ...


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