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Kimble v. Berryhill

United States District Court, D. Oregon

August 4, 2017

JESSICA LINN KIMBLE, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          Nancy J. Meserow Attorney for Plaintiff.

          Billy J. Williams, U.S. Attorney Janice E. Hébert, Asst. U.S. Attorney Lars J. Nelson Special Assistant U.S. Attorney Office of the General Counsel Attorneys for Defendant.

          OPINION & ORDER

          JOHN JELDERKS, U.S. MAGISTRATE JUDGE

         Jessica Linn Kimble (“Plaintiff”) brings this action pursuant to 42 U.S.C. §§ 405(g) and 1381a seeking judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying her application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act (“the Act”). For the reasons that follow, the Commissioner's decision is reversed and this case is remanded for further proceedings.

         Procedural Background

         Plaintiff filed her application for DIB and SSI on April 18, 2012, alleging disability beginning September 30, 2007. Tr. 13, 180. After Plaintiff's claim was denied initially and on reconsideration, a hearing was convened on February 27, 2014, before Administrative Law Judge (“ALJ”) Paul Robeck. Tr. 29-63. The ALJ issued a decision on March 21, 2014, finding Plaintiff not disabled. Tr. 8-24. The decision became the final decision of the Commissioner on July 21, 2015, when the Appeals Council denied Plaintiff's subsequent request for review. Tr. 1-6. Plaintiff now appeals to this Court for review of the Commissioner's final decision.

         Background

         Born July 31, 1982, Plaintiff was 25 years old on the initial alleged onset date. Tr. 22, 180. Plaintiff has an 8th grade education and has not completed her GED. Tr. 38, 202. She has past relevant work as a fast food cashier, a machine operator, a security guard, and doing “production” at a thrift store. Tr. 202. Plaintiff alleges disability due to scoliosis, chronic back pain, anxiety, posttraumatic stress disorder (“PTSD”), and depression. Tr. 16, 44, 66.

         Disability Analysis

         The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. The five step sequential inquiry is summarized below, as described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).

         Step One. The Commissioner determines whether the claimant is engaged in substantial gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant's case under step two. 20 C.F.R. §§ 404.1520(b), 416.920(b).

         Step Two. The Commissioner determines whether the claimant has one or more severe impairments. A claimant who does not have any such impairment is not disabled. If the claimant has one or more severe impairment(s), the Commissioner proceeds to evaluate the claimant's case under step three. 20 C.F.R. §§ 404.1520(c), 416.920(c).

         Step Three. Disability cannot be based solely on a severe impairment; therefore, the Commissioner next determines whether the claimant's impairment “meets or equals” one of the presumptively disabling impairments listed in the Social Security Administration (“SSA”) regulations. 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that meets a listing is presumed disabled under the Act. If the claimant's impairment does not meet or equal an impairment listed in the listings, the Commissioner's evaluation of the claimant's case proceeds under step four. 20 C.F.R. §§ 404.1520(d), 416.920(d).

         Step Four. The Commissioner determines whether the claimant is able to perform work he or she has done in the past. A claimant who can perform past relevant work is not disabled. If the claimant demonstrates he or she cannot do past relevant work, the Commissioner's evaluation of claimant's case proceeds under step five. 20 C.F.R. §§ 404.1520(f), 416.920(f).

         Step Five. The Commissioner determines whether the claimant is able to do any other work. A claimant who cannot perform other work is disabled. If the Commissioner finds claimant is able to do other work, the Commissioner must show that a significant number of jobs exist in the national economy that claimant is able to do. The Commissioner may satisfy this burden through the testimony of a vocational expert (“VE”), or by reference to the Medical-Vocational Guidelines. 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates that a significant number of jobs exist in the national economy that the claimant is able to do, the claimant is not disabled. If the Commissioner does not meet the burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

         At steps one through four of the sequential inquiry, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098. At step five, the burden shifts to the Commissioner to show the claimant can perform jobs that exist in significant numbers in the national economy. Id.

         The ALJ's Decision

         At the first step of the disability analysis, the ALJ found Plaintiff met the insured status requirements through December 31, 2009, and had not engaged in substantial gainful activity since the alleged onset date, September 30, 2007. Tr. 13.

         At the second step, the ALJ found Plaintiff had the following severe impairments: scoliosis, anxiety, PTSD, and depression. Tr. 13.

         At the third step, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or equaled a presumptively disabling impairment set out in the Listings. 20 C.F.R. Part 404, Subpart P, App. 1; Tr. 13-14.

         Before proceeding to the fourth step, the ALJ assessed Plaintiff's residual functional capacity (“RFC”). He found Plaintiff retained the capacity to:

[P]erform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). She can lift and carry up to 10 pounds. When seated, she should be allowed to stand for 30 minutes with no interruption in the work process. She is limited to simple, repetitive tasks consistent with unskilled work.

Tr. 15.

         At the fourth step of the disability analysis, the ALJ found Plaintiff was unable to perform any past relevant work. Tr. 22.

         At the fifth step, the ALJ found that Plaintiff retained functional capacity required to perform jobs that existed in significant numbers in the national economy. Tr. 23. Relying on the VE's testimony, the ALJ cited semiconductor wafer breaker, addresser, and document sorter as examples of work Plaintiff could perform. Tr. 23. Based upon the conclusion that Plaintiff could perform such work, the ALJ found that Plaintiff was not disabled within the meaning of the Act, from September 30, 2007, through the date of this decision. Tr. 23.

         Standard of Review

         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). Claimants bear the initial burden of establishing disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears the burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991), and bears the burden of establishing that a claimant can perform “other work” at step five of the disability analysis process. Tackett, 180 F.3d at 1098.

         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 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The court must weigh all of the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler,807 F.2d 771, 771 (9th Cir. 1986). The ...


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