United States District Court, D. Oregon, Eugene Division
LINDA D. FREY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant,
OPINION AND ORDER
V. ACOSTA, UNITED STATES MAGISTRATE JUDGE:
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
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.)
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.)
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).
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).
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.
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.
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.
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.
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.)
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 ...