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Overton-Perez v. Berryhill.

United States District Court, D. Oregon, Medford Division

May 1, 2017

JUNE OVERTON-PEREZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION & ORDER

          MARK D. CLARKE United States Magistrate Judge.

         Plaintiff June Overton-Perez, acting pro se, seeks judicial review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of the Social Security Administration denying her application for a period of disability, disability insurance benefits, and supplemental security income pursuant to the Social Security Act. For the reasons below, the Commissioner's decision is AFFIRMED.[1]

         BACKGROUND

         Plaintiff was born March 14, 1959, and is currently fifty-eight years old. Tr. 363. Plaintiff is divorced; has a high school education; continues to occasionally do work akin to a real-estate auctioneer, and previously worked as a process server, family coordinator, and a court mediator. Tr. 36-39, 53-55, 356, 358.

         In September 2013, Plaintiff filed for a period of disability and disability benefits; she also filed for supplemental security income. Tr. 14. She alleged disability onset beginning January 1, 2008. Tr. 14. On December 4, 2015, Plaintiff had a hearing before an administrative law judge ("ALJ"). Tr. 32. At the beginning of the hearing, and after conferring with her attorney, Plaintiff amended the alleged onset date to August 1, 2011, which was accepted by the ALJ. Tr. 35-36.

         In April 2010, Plaintiff was involved in a motor vehicle accident; she states she was a passenger in a PT Cruiser that was hit on the passenger side by an oncoming vehicle. Tr. 756. She suffered contusions from the accident and was treated and released the same day from the emergency room. Tr. 40, 756. Following the accident, Plaintiff sought medical care, complaining of back, shoulder, and chest pain; she indicated she was having trouble getting in and out of her car, causing her to miss work. Tr. 756-57. X-rays showed an irregularity of the cortex at the L5 vertebrae, as well as vertebral asymmetry. Tr. 279. A June 2010 imaging report, however, indicated that her "cervical vertebrae appear[ed] normal in height and alignment, " there were "[n]o fractures or significant subluxations, " disc spacing "all appear[ed] relatively well preserved, " and there was "no abnormal prevertebral soft tissue swelling." Tr. 759.

         Since the accident, though, Plaintiff has experienced persistent back pain and numbness in her right leg and other lower extremities. Tr. 14, 279, 329. A CT scan of Plaintiff s lumbar spine "revealed arthropathy, joint space narrowing, and [a] vacuum phenomenon at the L4-5 facet joints bilaterally." Tr. 279. In addition to chronic back pain and numbness, Plaintiff also complains of migraines, chronic obstructive pulmonary disease ("COPD"), asthma, sleep apnea, anxiety, arthritis, environmental allergies, intestinal issues such as polyps and chronic constipation, carpal tunnel syndrome, and Antiphospholipid Antibody Syndrome, [2] among other ailments. Tr. 22, 258-59, 278, 357.

         As stated, Plaintiff applied for disability in September 2013 and had a hearing in front of an ALJ in December 2015. Tr. 32. Twenty days after the hearing, the ALJ issued her decision, which found that the severe impairments the ALJ found Plaintiff to suffer from did not preclude her ability to perform past relevant work as a family coordinator and a process server. Tr. 26. Accordingly, the ALJ determined Plaintiff was not disabled as defined by the Social Security Act.[3] Tr. 26. On April 7, 2016, the Appeals Council denied Plaintiffs request for review, making the ALJ's denial the Commissioner's final decision. Tr. 1. This timely appeal followed.

         DISABILITY 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). 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). Unless expected to result in death, an impairment 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). This impairment must have lasted or must 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)(H). 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 proceeds to the "residual functional capacity" ("RFC") assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's 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, 954-55 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 954. The Commissioner bears the burden of proof at step five. Id. at 953-54. 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." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999) (internal citations omitted); 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 954-55; Tackett, 180 F.3d at 1099.

         THE ALJ'S FINDINGS

         Applying the five-step analysis, the ALJ found:

1. Plaintiff has not engaged in substantial gainful activity since her amended alleged onset date of August 1, 2011. (20 CFR § 404.1571 et seq.). Tr. 16.
2. Plaintiff has the following severe medically determinable impairments: trochanteric bursitis/sacroiliac dysfunction; mild facet arthropathy/lumbago; COPD; asthma; sleep apnea; and obesity. (20 CFR § 404.1520(c)). Tr. 17.
3. Plaintiff does not have an impairment or a combination of impairments that meet or medically equal the severity of one of the listed impairments in 20 CFR Pt. 404, Subpt. P, App. 1. (20 CFR ยงยง ...

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