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Pilcher v. Berryhill

United States District Court, D. Oregon

August 10, 2017

RONALD ROBERT PILCHER, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Commissioner of Social Security, Defendant.

          Katherine L. Eitenmiller and Brent Wells, Harder, Wells, Baron & Manning, PC, Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Janice E. Hébert, Assistant United States Attorney; United States Attorney's Office, District of Oregon, Michael Howard, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Attorneys for Defendant.

          OPINION AND ORDER

          MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE

         Ronald R. Pilcher seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his applications for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). Because the Commissioner's decision is based on the proper legal standards and the findings are supported by substantial evidence, the 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); Molina v. Astrue, 673 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” and is more than a “mere scintilla” of the evidence but less than a preponderance. Id. at 1110-11 (quotation omitted). The Court must uphold the ALJ's findings if they “are supported by inferences reasonably drawn from the record[, ]” even if the evidence is susceptible to multiple rational interpretations. Id. at 1110. The Court may not substitute its judgment for that of the Commissioner. Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (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) (quotation omitted).

         BACKGROUND

         A. Plaintiff's Application

         Mr. Pilcher filed applications for DIB and SSI on October 6, 2011, alleging disability as of December 31, 2010. AR 123, 151. Born in October 1969, Mr. Pilcher was 41 years old on the alleged disability onset date and 45 at the time of the last of four hearings on this matter. AR 47, 82, 96, 109. He speaks English, graduated from high school, attended college courses, and earned an associate's degree. AR 63-64, 521. He alleges disability due to: chronic back pain, muscle spasms, depression, and alcoholism. AR 123. The Commissioner denied his application initially and upon reconsideration, and he requested a hearing before an Administrative Law Judge (“ALJ”). AR 104-05, 110-11. After an administrative hearing that was followed by three supplemental hearings, the ALJ found Mr. Pilcher not disabled in a decision dated April 18, 2014. AR 25-34. The Appeals Council denied Mr. Pilcher's subsequent request for review on December 4, 2015. AR 2. The ALJ's decision thus became the final decision of the Commissioner, and Mr. Pilcher sought review in this Court.

         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. § 432(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. § 404.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. § 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, 1100 (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 ALJ's Decision

         The ALJ performed the sequential analysis. AR 21-43. At step one, the ALJ found Mr. Pilcher had not engaged in substantial gainful activity since December 31, 2010, the alleged onset date. AR 27. At step two, the ALJ concluded that Mr. Pilcher had the following severe impairments: degenerative disc disease (“DDD”), obesity, and substance addiction disorder. Id. At step three, the ALJ determined that Mr. Pilcher did not have an impairment or combination of impairments that met or equaled a listed impairment. AR 29.

         The ALJ next assessed Mr. Pilcher's RFC and found that he could perform light work except that he is able to stand and walk for up to six hours per day; sit for up to six hours per day; requires the option to alternate between sitting and standing for no more than one hour at a time for each; is limited to occasional climbing of ramps and stairs and should not climb ladders, ropes, or scaffolds; frequent balancing and kneeling; occasional stooping, crouching, and crawling; and should not be exposed to hazards such as exposed moving machinery or unprotected heights. AR 30.

         At step four, the ALJ found that Mr. Pilcher could not perform his past relevant work. AR 32. At step five, based on the testimony of a vocational expert (“VE”), the ALJ concluded that Mr. Pilcher could perform jobs that exist in significant numbers in the national economy, including telemarketer, document scanner, and parking lot cashier. AR 33. Accordingly, the ALJ found Mr. Pilcher not disabled. AR 34.

         DISCUSSION

         Mr. Pilcher contends the ALJ made the following legal errors in evaluating his case: (1) failing to order a consultative examination in order to assess DDD in his back; (2) improperly assessing the credibility of his symptom testimony; (3) improperly assessing the medical opinions of treating physician William M. Bailey, M.D., and examining physician Maxine Hoggan, Psy.D.; and (4) finding his mental impairment was not “severe” at step two; which resulted in (5) further error at step five.

         A. ALJ's Discretion in Ordering a ...


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