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Abbe v. Commissioner Social Security Administration

United States District Court, D. Oregon

October 24, 2017

KARY ABBE, Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.

          Richard McGinty McGinty & Belcher, PC Attorney for Plaintiff

          Janice 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

         Plaintiff 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 affirmed.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB on May 23, 2012, alleging disability as of January 7, 2009. Tr. 144-45.[1] 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.

         FACTUAL BACKGROUND

         Plaintiff 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.

         SEQUENTIAL DISABILITY ANALYSIS

         A 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. Id.

         In the 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.

         In step 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.

         In step 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.

         THE ALJ'S DECISION

         At step 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.

         Tr. 22. 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.

         STANDARD OF REVIEW

         The 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.

         The 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)).

         DISCUSSION

         Plaintiff 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.

         I. Medical Evidence

         Social 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 ...


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