United States District Court, D. Oregon
Richard McGinty McGinty & Belcher, PC Attorney for
E. Hebert Assistant United States Attorney U.S.
Attorney's Office, District of Oregon Martha Boden Social
Security Administration Office of the General Counsel
Attorneys for Defendant
OPINION & ORDER
HERNÁNDEZ, DISTRICT JUDGE
Kary Abbe brings this action for judicial review of the
Commissioner's final decision denying her application for
Disability Insurance Benefits (“DIB”) under Title
II of the Social Security Act. This Court has jurisdiction
under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C.
§ 1382(c)(3)). The Commissioner's decision is
applied for DIB on May 23, 2012, alleging disability as of
January 7, 2009. Tr. 144-45. Her application was denied
initially and on reconsideration. Tr. 83-87, 91-94. On
September 19, 2014, Plaintiff appeared, with counsel, for a
hearing before an Administrative Law Judge (ALJ). Tr. 31. On
October 17, 2014, the ALJ found Plaintiff not disabled. Tr.
26. The Appeals Council denied review. Tr. 1.
alleges disability based on insomnia, severe depression,
anxiety, agoraphobia, and c-spine curvature. Tr. 157.
Plaintiff was 41 at the time of the administrative hearing.
Tr. 35. Plaintiff obtained a GED and has past work experience
as a CNA and casino cleaning attendant. Tr. 158.
claimant is disabled if unable to “engage in any
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). Disability claims are evaluated according to a
five-step procedure. See, e.g., Valentine v.
Comm'r, 574 F.3d 685, 689 (9th Cir. 2009). The
claimant bears the ultimate burden of proving disability.
first step, the Commissioner determines whether a claimant is
engaged in “substantial gainful activity.” If so,
the claimant is not disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b),
416.920(b). In step two, the Commissioner determines whether
the claimant has a “medically severe impairment or
combination of impairments.” Yuckert, 482 U.S.
137 at 140-41; 20 C.F.R. §§ 404.1520(c),
416.920(c). If not, the claimant is not disabled.
three, the Commissioner determines whether the impairment
meets or equals “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 141; 20 C.F.R. §§
404.1520(d), 416.920(d). If so, the claimant is conclusively
presumed disabled; if not, the Commissioner proceeds to step
four. Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant,
despite any impairment(s), has the residual functional
capacity to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can, the claimant is not disabled. If the claimant cannot
perform past relevant work, the burden shifts to the
Commissioner. In step five, the Commissioner must establish
that the claimant can perform other work. Yuckert,
482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) &
(f), 416.920(e) & (f). If the Commissioner meets his
burden and proves that the claimant is able to perform other
work which exists in the national economy, the claimant is
not disabled. 20 C.F.R. §§ 404.1566, 416.966.
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity during the period from her
alleged onset date of January 7, 2009 through her date of
last insured of December 31, 2013. Tr. 18. Next, at steps two
and three, the ALJ determined that Plaintiff has the
following severe impairments: major depressive disorder,
posttraumatic stress disorder (“PTSD”), general
anxiety disorder, social phobia, attention deficit
hyperactivity disorder, and disorder of written expression.
Id. However, the ALJ determined that Plaintiff's
impairments did not meet or medically equal the severity of a
listed impairment. Tr. 20. At step four, the ALJ concluded
that Plaintiff has the residual functional capacity to
perform a full range of work at all exertional levels but
with some non-exertional limitations:
[Plaintiff] could perform simple routine and repetitive tasks
consistent with unskilled work. She could have no public
contact and only occasional superficial contact with
coworkers. She could have occasional contact with
supervisors. She also was limited to low-stress work, which
is defined as work requiring few decisions and few changes.
The ALJ concluded that Plaintiff could perform her past
relevant work as a cleaning attendant. Tr. 25. Alternatively,
at step five the ALJ found that there are jobs that exist in
significant numbers in the national economy that Plaintiff
can perform, such as “merchandise marker/tagger”
and “garment folder.” Tr. 26. Thus, the ALJ
concluded that Plaintiff is not disabled. Id.
reviewing court must affirm the Commissioner's decision
if the Commissioner applied proper legal standards and the
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm'r of Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence” means “more than a
mere scintilla, but less than preponderance.” Bray
v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222
(9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995)). It is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id.
court must weigh the evidence that supports and detracts from
the ALJ's conclusion. Lingenfelter v. Astrue,
504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The
reviewing court may not substitute its judgment for that of
the Commissioner. Id. (citing Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see
also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001). Variable interpretations of the evidence are
insignificant if the Commissioner's interpretation is a
rational reading. Id.; see also Batson, 359
F.3d at 1193. However, the court cannot not rely upon
reasoning the ALJ did not assert in affirming the ALJ's
findings. Bray, 554 F.3d at 1225-26 (citing SEC
v. Chenery Corp., 332 U.S. 194, 196 (1947)).
contends that the ALJ erred by failing to properly evaluate
the medical evidence and discounting Plaintiff's
credibility. According to Plaintiff, because the ALJ erred,
the residual functional capacity (“RFC”) does not
include all of her limitations. Further, Plaintiff contends
that the ALJ ignored the conflict between the Vocational
Expert's testimony and the Dictionary of Occupational
Titles (“DOT”), and thus failed to identify
occupations at step five of the sequential evaluation process
that are consistent with the medical evidence.
Plaintiff's arguments are unavailing and, thus, the Court
upholds the ALJ's decision.
security law recognizes three types of physicians: (1)
treating, (2) examining, and (3) nonexamining. Holohan v.
Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001);
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996).
The ALJ may reject the uncontradicted opinion of an examining
physician by providing clear and convincing reasons supported
by substantial evidence in the record. Lester, 81
F.3d at 830-31. If an examining doctor's opinion is
contradicted by another doctor's opinion, an ALJ may only
reject it by providing specific and legitimate reasons that
are supported by substantial evidence. Barnhart, 427
F.3d at 1216 (citing Lester, 81 F.3d at 830-31).
“The ALJ can meet this burden by setting out a detailed
and thorough summary of the facts and conflicting clinical
evidence, stating his interpretation thereof, and making
findings.” Magallanes v. Bowen, 881 F.2d 747,
751 (9th Cir. 1989)(citation omitted). Further, an ALJ may
reject a physician's opinion if it conflicts with the
physician's other findings. Tommasetti v.
Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Although
the contrary ...