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Marney v. Berryhill

United States District Court, D. Oregon

October 8, 2017

DARLA MARNEY, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          Bruce W. Brewer, Attorney for Plaintiff

          Billy 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

          John Jelderks U.S. Magistrate Judge

         Plaintiff, 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 proceedings.

         For the reasons set out below, the Commissioner's decision should be REVERSED and REMANDED for further proceedings.

         Procedural Background

         Plaintiff protectively filed an application for DIB and SSI on August 15, 2011, alleging disability since January 1, 2010.

         After her claims were denied initially and upon reconsideration, Plaintiff timely requested an administrative hearing.

         On 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 counsel.

         In a decision dated February 28, 2014, ALJ Murgo found Plaintiff was not disabled within the meaning of the Act.

         On July 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.

         Background

         Plaintiff 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.

         Disability Analysis

         The ALJ 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. 1999).

         Step 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), 416.920(b).

         Step 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).

         Step 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), 416.920(d).

         Step 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).

         Step 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. §§ 404.1520(g)(1), 416.920(g).

         At 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.

         ALJ's Decision

         At the 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.

         At the 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.

         At the 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.

         The ALJ 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.

Id.

         In making his determination, the ALJ found not all of Plaintiff's symptom allegations were credible. Tr. 27.

         At the fourth step, the ALJ found Plaintiff had no past relevant work. Tr. 32.

         At the 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. 34.

         Standard of Review

         A 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 1098.

         The 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. ...


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