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Ellingson v. Berryhill

United States District Court, D. Oregon

August 29, 2017

NANCY A. BERRYHILL, Commissioner, Social Security Administration, Defendant.



         Plaintiff, 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.


         Plaintiff 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.

         During 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.


         Born on 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.


         The 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).

         The 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).

         The 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.

         At step 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.

         At step 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.

         At step 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. § 404.1566.


         The ALJ 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.

         Because 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 additional limitations:

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 goal-oriented work.

Tr. 325.

         At step 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 significant ...

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