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Frey v. Berryhill

United States District Court, D. Oregon, Eugene Division

October 16, 2017

LINDA D. FREY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant,



         Linda Frey ("plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying her applications for Title II Disability Insurance Benefits ("DIB") and Title XVI Supplemental Security Income ("SSI") under the Social Security Act ("Act"). All parties have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Federal Rule of Civil Procedure. 73 and 28 U.S.C. § 636(c). Based on a careful review of the record, the Commissioner's decision is affirmed.

         Procedural Background

         On November 29, 2012, plaintiff applied for DIB and SSI. (Tr. 196-98, 199-204.) In both applications plaintiff alleges disability as of January 15, 2011. (Tr. 196, 199.) The Commissioner denied her applications initially and upon reconsideration, (Tr, 92-100, 101-09, 112-22, 123-33.) On October 10, 2013, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and an administrative hearing was held on October 21, 2014. (Tr. 51-89, 154-55.) After the hearing, the ALJ issued an unfavorable decision on December 31, 2014, finding plaintiff not disabled. (Tr. 23-44.) The Appeals Council denied plaintiffs subsequent request for review, making the ALJ's decision final. (Tr, 1 -6.) This appeal followed. Plaintiff argues that the ALJ erred by: (1) improperly rejecting the medical opinion evidence of Dr. Daniel Paulson; (2) failing to provide a clear and convincing reason to reject her subjective symptom testimony; and (3) failing to support the step five finding with substantial evidence. (Pl's Opening Br. 8-19.)

         Factual Background

         Born on May 6, 1964, plaintiff was forty-six years old on the alleged onset date of disability and fifty years old at the time of the hearing, (Tr. 196, 199.) She completed some high school and has past work as a fast food worker. (Tr. 56-57, 69-70.) Plaintiff alleges disability due to strokes, heart problems, heart attacks, bursae sac problems, and asthma. (Tr. 92, 101, 112, 123.) Her date last insured for Title II benefits was December 31, 2009. (Tr. 226.)

         Standard of Review

         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). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).

         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);20C.F.R. §§404.1520, 416.920. 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), 416.920(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), 416.920(c). If the claimant does not have a medically determinable, severe impairment, he 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), 416.920(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), 416.920(f). If the claimant can work, he is not disabled; if he 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), 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         The ALJ's Findings

         At step one of the five-step process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since January 5, 2011, the alleged onset date. (Tr. 28.) At step two, the ALJ determined that plaintiff had the following severe impairments: congenital clubfoot, status post surgical repair with atrophy and smaller foot, Achilles tendinitis left foot, coronary artery disease, chronic obstructive pulmonary disorder (COPD), and depression. (Tr. 28-29.) At step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. (Tr, 29-30.)

         The ALJ next assessed plaintiffs residual functional capacity (RFC) and found that plaintiff has the RFC to

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). She can lift and/or carry 20 pounds occasionally and 10 pounds frequently. She can stand and/or walk for a total of four hours and sit for a total of six hours in an eight-hour workday with normal breaks. The claimant is limited to no foot control operation with the left lower extremity. She is limited to no more than occasional push or pull with the left extremities. The claimant is limited to no more than occasional climbing of ramps or stairs. She must never climb ladders, ropes, or scaffolds. The claimant is limited to no more than frequent balancing. The claimant must avoid concentrate (sic) exposure to irritants such as ...

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