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Garifalakis v. Berryhill

United States District Court, D. Oregon

June 15, 2017

SPYROS GARIFALAKIS, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration, Defendant.

          MERRILL SCHNEIDER Schneider Kerr Law, Attorneys for Plaintiff

          BILLY J. WILLIAMS United States Attorney, JANICE E. HEBERT, Assistant United States Attorney, DAVID MORADO Regional Chief Counsel, THOMAS M. ELSBERRY, Special Assistant United States Attorney Social Security Administration, Attorneys for Defendant.

          OPINION AND ORDER

          ANNA J. BROWN United States District Judge.

         Plaintiff Spyros Garifalakis seeks judicial review of the final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's applications for Disability Insurance Benefits (DIB) under Title II of the Social Security Act and Supplemental Security Income (SSI) under Title XVI of the Social Security Act. This Court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

         For the reasons that follow, the Court AFFIRMS the decision of the Commissioner and DISMISSES this matter.

         ADMINISTRATIVE HISTORY

         Plaintiff protectively filed his applications for DIB and SSI on May 29, 2013. Tr. 28, 219, 221.[2] Plaintiff alleged a disability onset date of January 1, 2009. Tr. 28, 219, 221. Plaintiff's applications were denied initially and on reconsideration. An Administrative Law Judge (ALJ) held a hearing on August 25, 2015. Tr. 48. Plaintiff and a vocational expert (VE) testified. Plaintiff was represented by an attorney at the hearing.

         On October 6, 2015, the ALJ issued an opinion in which he found Plaintiff is not disabled and, therefore, is not entitled to benefits. Tr. 28-40. On April 5, 2016, the Appeals Council denied Plaintiff's request to review the ALJ's decision, and the ALJ's decision became the final decision of the Commissioner. Tr. 1-5. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

         On June 9, 2016, Plaintiff filed a Complaint in this Court seeking review of the Commissioner's decision.

         BACKGROUND

         Plaintiff was born on March 31, 1967. Tr. 219, 221. Plaintiff was 48 years old at the time of the hearing. Plaintiff has at least a sixth-grade education. Tr. 54, 240. The ALJ found Plaintiff has past relevant work experience as a forklift operator, warehouse worker, stocking clerk, and “delivery/route driver.” Tr. 39, 78-79.

         Plaintiff alleges disability due to bipolar disorder, attention-deficit hyperactivity disorder (ADHD), anxiety, fibromyalgia, coronary artery disease, chronic obstructive pulmonary disorder (COPD), personality disorder, a brain aneurysm, headaches, stroke, and temporomandibular joint disorder (TMJ). Tr. 239.

         Except as noted, Plaintiff does not challenge the ALJ's summary of the medical evidence. See Tr. 30-39. After carefully reviewing the medical records, this Court adopts the ALJ's summary of the medical evidence.

         STANDARDS

         The initial burden of proof rests on the claimant to establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). To meet this burden, a claimant must demonstrate his inability “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). The ALJ must develop the record when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)).

         The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11 (quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). It is more than a mere scintilla [of evidence] but less than a preponderance. Id. (citing Valentine, 574 F.3d at 690).

         The ALJ is responsible for evaluating a claimant's testimony, resolving conflicts in the medical evidence, and resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The court must weigh all of the evidence whether it supports or detracts from the Commissioner's decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even when the evidence is susceptible to more than one rational interpretation, the court must uphold the Commissioner's findings if they are supported by inferences reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The court may not substitute its judgment for that of the Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).

         DISABILITY ANALYSIS

         I. The Regulatory Sequential Evaluation

         At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful activity (SGA). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). See also Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

         At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also Keyser, 648 F.3d at 724.

         At Step Three the claimant is disabled if the Commissioner determines the claimant's impairments meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). See also Keyser, 648 F.3d at 724. The criteria for the listed impairments, known as Listings, are enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed Impairments).

         If the Commissioner proceeds beyond Step Three, she must assess the claimant's residual functional capacity (RFC). The claimant's RFC is an assessment of the sustained, work-related physical and mental activities the claimant can still do on a regular and continuing basis despite his limitations. 20 C.F.R. §§ 404.1520(e), 416.920(e). See also Social Security Ruling (SSR) 96-8p. “A ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent schedule.” SSR 96-8p, at *1. In other words, the Social Security Act does not require complete incapacity to be disabled. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

         At Step Four the claimant is not disabled if the Commissioner determines the claimant retains the RFC to perform work he has done in the past. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724.

         If the Commissioner reaches Step Five, she must determine whether the claimant is able to do any other work that exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). See also Keyser, 648 F.3d at 724-25. Here the burden shifts to the Commissioner to show a significant number of jobs exist in the national economy that the claimant can perform. Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). The Commissioner may satisfy this burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines set forth in the regulations at 20 C.F.R. part 404, subpart P, appendix 2. If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

         ALJ'S FINDINGS

         At Step One the ALJ found Plaintiff has not engaged in substantial gainful activity since January 1, 2009, the alleged onset date. Tr. 30.

         At Step Two the ALJ found Plaintiff has the severe impairments of status-post cerebral vascular accident, late effects of a cerebrovascular disease, poly-substance abuse and dependence, and mood disorder. Tr. 30-32.

         At Step Three the ALJ concluded Plaintiff's medically determinable impairments do not meet or medically equal one of the listed impairments in 20 C.F.R. part 404, subpart P, appendix 1. Tr. 33. The ALJ found Plaintiff has the RFC to perform medium work except that Plaintiff must avoid concentrated exposure to fumes, dusts, orders, gases, and pulmonary irritants and must avoid all exposure to heights and hazards. The ALJ also found Plaintiff has the ability to perform simple, routine work with a specific vocational preparation of 1 or 2, and he can have “occasional, indirect contact with coworkers” but not any contact with the public. Tr. 32-38.

         At Step Four the ALJ concluded Plaintiff is incapable of performing his past relevant work. Tr. 38-39.

         At Step Five the ALJ found Plaintiff could perform other jobs that exist in the national economy, including hand-packager and laundry laborer. Tr. 39-40. In the alternative, even if Plaintiff was limited to light work, the ALJ found he could still perform other jobs that exist in the national economy, including room cleaner and agricultural sorter. Tr. 40. Accordingly, the ALJ found Plaintiff is not disabled. Tr. 40.

         DISCUSSION

         Plaintiff contends the ALJ erred when he (1) did not find various conditions to be “severe” at Step Two; (2) discredited Plaintiff's testimony; (3) discredited the global assessment of functioning (GAF) scores assigned to Plaintiff; (4) discredited the opinions of nonexamining psychiatrists Joshua J. Boyd, Psy.D., and Dorothy Anderson, Ph.D.; (5) discredited the opinion of Daniel Wardin, PLC, one of Plaintiff's ...


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