United States District Court, D. Oregon
W. Brewer, Attorney for Plaintiff
J. Williams, Acting U.S. Attorney, Janice Hebert, Asst. U.S.
Attorney, Jordan D. Goddard, Special Asst. U.S. Attorney,
Office of the General Counsel, Social Security
Administration, Attorneys for Defendant.
FINDINGS AND RECOMMENDATION
Jelderks U.S. Magistrate Judge
Darla Marney, brings this action pursuant to 42 U.S.C.
§405(g) seeking judicial review of a final decision of
the Commissioner of Social Security (“the
Commissioner”) denying her applications for Disability
Insurance Benefits (“DIB”) under Title II and
Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act (“Act”). Plaintiff
seeks an Order remanding the action to the Social Security
Administration (“Agency”) for an award of
benefits or, in the alternative, remanding for further
reasons set out below, the Commissioner's decision should
be REVERSED and REMANDED for further proceedings.
protectively filed an application for DIB and SSI on August
15, 2011, alleging disability since January 1, 2010.
her claims were denied initially and upon reconsideration,
Plaintiff timely requested an administrative hearing.
February 6, 2014, a hearing was held before Administrative
Law Judge (“ALJ”) Rudolph Murgo. Plaintiff and
Kent Granat, a Vocational Expert (“VE”),
testified at the hearing. Plaintiff was represented by
decision dated February 28, 2014, ALJ Murgo found Plaintiff
was not disabled within the meaning of the Act.
14, 2015, the Appeals Council denied Plaintiff's request
for review, rendering the ALJ's decision the final
decision of the Commissioner. In the present action,
Plaintiff challenges that decision.
was born in 1976 and was 37 years old at the time of the
ALJ's decision. Tr. 215. She earned a high school
equivalence degree (“GED”) and completed training
as a certified nursing assistant. Tr. 268. Plaintiff has
never worked at substantial gainful activity levels. Tr. 65.
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. Below is a summary
of the five steps, which also are described in Tackett v.
Apfel, 180 F.3d 1094, 1098-99 (9th Cir.
One. The Commissioner determines whether the claimant is
engaged in substantial gainful activity (“SGA”).
A claimant 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),
Two. The Commissioner determines whether the claimant
has one or more severe impairments. A claimant who does not
have such an impairment is not disabled. If the claimant has
a severe impairment, the Commissioner proceeds to evaluate
the claimant's case under Step Three. 20 C.F.R.
§§ 404.1520(c), 416.920(c).
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 Agency regulations, 20 C.F.R. Part 404, Subpart
P, Appendix 1. A claimant who has such an impairment is
disabled. If the claimant's impairment does not meet or
equal an impairment listed in the regulations, the
Commissioner's evaluation of the claimant's case
proceeds under Step Four. 20 C.F.R. §§ 404.1520(d),
Four. The Commissioner determines whether the claimant
is able to perform relevant 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
work performed in the past, the Commissioner's evaluation
of the claimant's case proceeds under Step Five. 20
C.F.R. §§ 404.1520(f), 416.920(f).
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 that the
claimant is able to do other work, the Commissioner must show
that a significant number of jobs exist in the national
economy that the claimant can do. The Commissioner may
satisfy this burden through the testimony of a 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 can do, the claimant is
not disabled. If the Commissioner does not meet this burden,
the claimant is disabled. 20 C.F.R. §§
Steps One through Four, 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 that the
claimant can perform jobs that exist in significant numbers
in the national economy. Id.
first step of his disability analysis, the ALJ found
Plaintiff had not engaged in substantial gainful activity
since January 1, 2010, the alleged onset date. Tr. 21.
second step, the ALJ found Plaintiff had the following severe
impairments: obesity; dysfunction of major joints; panic
disorder; major depressive disorder; and post-traumatic
stress disorder (“PTSD”). Id.
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. 23.
next assessed Plaintiff's residual functional capacity
(“RFC”). He found that Plaintiff retained the
capacity to perform light work except Plaintiff could lift
twenty pounds occasionally and ten pounds frequently. Tr. 25.
He further found that Plaintiff:
[C]an stand or walk for two out of eight hours and sit for
six of eight hours . . . . she can no more than occasionally
crawl, crouch, kneel or climb ropes, ladders or scaffolds.
She can no more than frequently balance and climb ramps and
stairs. She can stoop without limitations. She must avoid
concentrated exposure to fumes and odors, dust, gases,
pulmonary irritants, heights and heavy equipment. She is
limited to simple, routine tasks consistent with the SVP 1 or
2 levels. She can read, write, add and subtract at the level
of a person with a GED. She is limited to no more than
occasional public contact in person and on the telephone.
making his determination, the ALJ found not all of
Plaintiff's symptom allegations were credible. Tr. 27.
fourth step, the ALJ found Plaintiff had no past relevant
work. Tr. 32.
fifth step of the disability analysis, the ALJ found
Plaintiff could perform other jobs that existed in
significant numbers in the national economy. Based upon
testimony from the VE, the ALJ cited circuit board assembler,
dye attacher, and electronics worker as examples of such
work. Tr. 33. Having concluded that Plaintiff could perform
other work, the ALJ found Plaintiff had not been under a
disability within the meaning of the Act since January 1,
2010, the date her application was protectively filed. Tr.
claimant is disabled if he or she is unable “to engage
in 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
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.” Andrews, 53 F.3d at 1039. 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, 772 (9th Cir.