United States District Court, D. Oregon
ROBERT D. ELLINGSON, Plaintiff,
NANCY A. BERRYHILL, Commissioner, Social Security Administration, Defendant.
OPINION AND ORDER
A. RUSSO, UNITED STATES MAGISTRATE JUDGE.
Robert D. Ellingson, brings this proceeding to obtain
judicial review of the final decision of the Social Security
Administration (“Commissioner”) denying
plaintiff's application for Disability Insurance Benefits
(“DIB”). For the following reasons, the
Commissioner's decision is AFFIRMED.
filed an application for DIB on March 7, 2011, alleging
disability beginning October 16, 2010. Tr. 113. After a
hearing before an Administrative Law Judge
(“ALJ”) in November 2012, plaintiff's claim
was denied. Tr. 11-19. On appeal, the U.S. District Court of
Oklahoma remanded the case to the Commissioner for further
proceedings. Tr. 384-93. Specifically, the Court instructed
the ALJ to consider evidence provided by plaintiff's
mental health counselor, Linda Estes, LPC, and
plaintiff's sister, June Loveland. Tr. 393.
the pendency of this claim, plaintiff moved to Oregon and
filed a second application for benefits based on new medical
evidence relating to his heart condition and an exercise
stress test. Tr. 396. The Commissioner found plaintiff
disabled as of February 28, 2014 under the Medical-Vocational
Guidelines. Id. Accordingly, the Appeals Council
directed the ALJ to convene a new disability hearing for the
limited period from October 16, 2010, to February 28, 2014.
Id. After the second hearing in February 2016, the
ALJ issued a decision finding plaintiff not disabled during
the relevant time period. Tr. 320-32. The ALJ's
determination represented the final decision of the
Commissioner. Plaintiff now seeks review of that decision.
October 26, 1958, plaintiff was 51 years old on the alleged
onset date of disability and 57 years old at the time of the
second hearing. Tr. 330. Plaintiff completed the ninth grade
and attended vocational truck driving training. Tr. 29. He
worked previously as a tractor-trailer truck driver. Tr. 43.
Plaintiff alleges disability based on depression and
post-traumatic stress disorder (“PTSD”) stemming
from allegedly waking up during a surgical procedure he
underwent in 1997 to remove prostate cancer. Tr. 136, 326.
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. Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial
evidence is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation and internal
quotations omitted). The court must weigh “both the
evidence that supports and detracts from the
[Commissioner's] conclusions.” Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable
interpretations of the evidence are insignificant if the
Commissioner's interpretation is rational. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
initial burden of proof rests upon the claimant to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the claimant must
demonstrate an “inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected . . . to
last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A).
Commissioner has established a five step sequential process
for determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
404.1520. First, the Commissioner determines whether a
claimant is engaged in “substantial gainful
activity.” Yuckert, 482 U.S. at 140; 20 C.F.R.
§ 404.1520(b). If so, the claimant is not disabled.
two, the Commissioner evaluates whether the claimant has a
“medically severe impairment or combination of
impairments.” Yuckert, 482 U.S. at 140-41; 20
C.F.R. § 404.1520(c). If the claimant does not have a
severe impairment, she is not disabled.
three, the Commissioner determines whether the claimant's
impairments, either singly or in combination, meet or equal
“one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity.” Yuckert, 482
U.S. at 140-41; 20 C.F.R. § 404.1520(d). If so, the
claimant is presumptively disabled; if not, the Commissioner
proceeds to step four. Yuckert, 482 U.S. at 141.
four, the Commissioner resolves whether the claimant can
still perform “past relevant work.” 20 C.F.R.
§ 404.1520(f). If the claimant can work, she is not
disabled; if she cannot perform past relevant work, the
burden shifts to the Commissioner. At step five, the
Commissioner must establish that the claimant can perform
other work existing in significant numbers in the national or
local economy. Yuckert, 482 U.S. at 141-42; 20
C.F.R. § 404.1520(g). If the Commissioner meets this
burden, the claimant is not disabled. 20 C.F.R. §
performed the sequential analysis, as detailed above. At step
one, the ALJ found plaintiff had not engaged in substantial
gainful activity during the relevant time period. Tr. 323. At
step two, the ALJ found plaintiff had the following severe
impairments: “residuals from bladder cancer treatment,
including major depression, post-traumatic stress disorder
(PTSD), and urostomy.” Id. At step three, the
ALJ determined plaintiff's impairments, considered
individually or in combination, did not meet or equal the
requirements of a listed impairment. Tr. 323-25.
plaintiff did not establish presumptive disability at step
three, the ALJ continued to evaluate how plaintiff's
impairments affected his ability to work. The ALJ determined
that plaintiff had the residual functional capacity
(“RFC') to perform medium work with the following
He could never crawl, and he could never climb ladders,
ropes, or scaffolds. He could not work in extreme
temperatures. He was limited to no more than occasional
interaction with the public, coworkers, and supervisors. Time
off task would be accommodated by normal breaks. He could not
perform work at an assembly line pace, but he could perform
four, the ALJ determined plaintiff was unable to perform past
relevant work. Finally, at step five, the ALJ determined,
with the assistance of a Vocational Expert
(“VE”), there were jobs that existed in