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Erler v. Commissioner Social Security Administration

United States District Court, D. Oregon

September 12, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff brings this action pursuant to the Social Security Act (the Act), 42 U.S.C. §§ 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (Commissioner). The Commissioner denied plaintiffs application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under the Act.

         Plaintiff was fifty-five years old at the time of the ALJ's decision. Tr. 103, 115, 239, 246. Plaintiff speaks English, completed one year of college, and has a certificate in drafting from Umpqua Community College. Tr. 265, 267. He worked as a CAD drafter and construction laborer. Tr. 267, 274-86. Plaintiff alleges disability as of January 27, 2011 due to a herniated disc, back injury, torn tendons in both shoulders, right hand broken twice, left hand surgery, h pylori/diverticulitis infections w/nausea, defective ureter, severe knee pain, and depression. Tr. 103, 115, 239, 246, COMMISSIONER'S DECISION

         The ALJ evaluated plaintiffs allegation of disability pursuant to the relevant five-step sequential process. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date, January 27, 2011. Tr. 24.

         At step two, the ALJ found that plaintiff had the following severe impairments: history of widespread chronic pain, depressive disorder, alcohol abuse in remission, and anxiety disorder. Tr. 24-25; 20 C.F.R. §§ 404.1520(c), 416.920(c). The ALJ found plaintiffs physical impairments of lumbar degenerative disc disease, gastritis, hypertension, intermittent scrotal pain, and status post heart attack/stenting were non-severe. Tr. 25.

         At step three, the ALJ found that plaintiffs medically severe impairments did not meet or equal one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude gainful activity. Tr. 25-27; 20 The ALJ found that plaintiff has the residual functional capacity (RFC) to:

perform a full range of work at all exertional levels but with the following nonexertional limitations: He can perform unskilled, repetitive, routine work; will be off-task at work 9% of the time, but still meets the minimum production requirements; will be absent from work 1 time per month; can have occasional contact with the public, supervisors and co-workers.

Tr. 27.

         At step four, the ALJ found that plaintiff was unable to perform any past relevant work. Tr. 31. At step five, based on plaintiffs assessed RFC and the testimony of the VE, the ALJ found there were jobs that exist in significant numbers in the national economy that plaintiff could perform. Tr. 31. Those jobs included industrial cleaner, DOT code 381.687-018, and motel cleaner, DOT code 323.687-014. Tr. 32. Based on plaintiffs ability to perform other work in the national economy, the ALJ found plaintiff not disabled under the meaning of the Act. Tr. 32.


         Plaintiff asserts that the Commissioner's decision should be vacated and remanded for an immediate award of disability insurance benefits and supplemental security income, or in the alternative, the action should be remanded for further administrative proceedings. Among other arguments, plaintiff contends the ALJ erred by failing to find his coronary artery disease, angina, and ureteral stricture were severe impairments at step two.

         Severe Impairments at Step Two

         The plaintiff bears the burden of establishing that he has a severe impairment at step two by providing medical evidence. 20 C.F.R. §§ 404.1512 and 416.912. An impairment or combination of impairments is "not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart 433 F.3d 683, 686 (9th Cir. 2005) (emphasis in original). Where an ALJ fails to identify a severe impairment at step two, but nonetheless considers at subsequent steps all of the plaintiffs impairments, including the erroneously omitted severe impairment, the error at step two is harmless. See, Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

         Ureteral ...

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