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Rigole v. Berryhill

United States District Court, D. Oregon

October 26, 2017

WILLIAM MORRISE RIGOLE II, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          Katherine L. Eitenmiller Mark A. Manning Harder, Wells, Baron & Manning, P.C. Attorneys for Plaintiff

          Billy J. Williams, U.S. Attorney Janice E. Hébert, Asst. U.S. Attorney, Michael S. Howard Special Assistant U.S. Attorney Office of the General Counsel Social Security Administration Attorneys for Defendant

          OPINION AND ORDER

          John Jelderks U.S. Magistrate Judge

         Plaintiff William Rigole II 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 his application for Disability Insurance Benefits (DIB) under the Social Security Act (the Act). For the reasons that follow, the Commissioner's decision is reversed and this case remanded for further proceedings.

         Procedural Background

          Plaintiff filed his application for a period of disability and DIB on July 13, 2014, alleging disability as of March 9, 2014. Tr. 17. The Commissioner denied his application initially and on reconsideration, and Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ). Tr. 111-12. An administrative hearing was held on June 2, 2015, before ALJ John Michaelsen. Tr. 14-30. In a decision dated June 11, 2015, the ALJ found that Plaintiff was not disabled within the meaning of the Act. Tr. 14-30. The ALJ's decision became the final decision of the Commissioner on September 9, 2015, when the Appeals Council denied Plaintiff's request for review. Tr. 1-3. Plaintiff now appeals to this Court for review of the Commissioner's final decision.

         Factual Background

         Plaintiff was born in 1980 and was 33 years old on the date he alleges he became disabled. Tr. 75-76. Plaintiff is a military veteran and served in the Army from 1999 to 2004 during Operation Iraqi Freedom. Tr. 276, 281-83. After being honorably discharged from the Army, Plaintiff attended two years of vocational rehabilitation training through the Veteran's Administration (“VA”). Tr. 281, 283. He has past relevant work as a U.S. Army infantryman and a trauma surgical technician. Tr. 164, 191. Plaintiff alleges disability due to post-traumatic stress disorder (PTSD), vision impairment, and diabetes. Pl.'s Br. at 1; Tr. 331-33, 510.

         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. The five step sequential inquiry is summarized below, as 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. A claimant who is 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).

         Step Two. The Commissioner determines whether the claimant has one or more severe impairments. A claimant who does not have any such impairment is not disabled. If the claimant has one or more severe impairment(s), the Commissioner proceeds to evaluate the claimant's case under Step Three. 20 C.F.R. § 404.1520(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 Social Security Administration (“SSA”) regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that meets a listing is presumed disabled under the Act. If the claimant's impairment does not meet or equal an impairment listed in the listings, the Commissioner's evaluation of the claimant's case proceeds under Step Four. 20 C.F.R. § 404.1520(d).

         Step Four. The Commissioner determines whether the claimant is able to perform 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 past relevant work, the Commissioner's evaluation of claimant's case proceeds under Step Five. 20 C.F.R. § 404.1520(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 claimant is able to do other work, the Commissioner must show that a significant number of jobs exist in the national economy that claimant is able to do. The Commissioner may satisfy this burden through the testimony of a vocational expert (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 is able to do, the claimant is not disabled. If the Commissioner does not meet the burden, the claimant is disabled. 20 C.F.R. § 404.1520(g)(1).

         At Steps One through Four of the sequential inquiry, 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 the claimant can perform jobs that exist in significant numbers in the national economy. Id.

         ALJ's Decision

         As an initial matter, the ALJ found that Plaintiff met the insured status requirements through December 31, 2018.

         At the first step of his disability analysis, the ALJ found that Plaintiff had not engaged in substantial gainful activity since March 9, 2014, the alleged onset date. Tr. 19.

         At the second step, the ALJ found Plaintiff's PTSD was a severe impairment. Tr. 19.

         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 Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).

         Before proceeding to the fourth step, the ALJ assessed Plaintiff's residual functional capacity (RFC). He found Plaintiff retained the functional capacity to:

[P]erform a full range of work at all exertional levels but with the following nonexertional limitations: simple, repetitive, routine tasks requiring no more than occasional interaction with coworkers and the general public.

Tr. 21. In making his determination, the ALJ found that Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms were not entirely credible. Tr. 22.

         At the fourth step of the disability analysis, the ALJ found Plaintiff was unable to perform any of his past relevant work. Tr. 24.

         At the fifth step, the ALJ found that Plaintiff could perform other jobs that existed in significant numbers in the national economy. Based upon testimony from the VE, the ALJ cited battery stacker, cleaner II, and basket filler as examples such work. Id. 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 March 9, 2014.

         Standard of Review

          A claimant is disabled if he or she is 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). 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 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, 771 (9th Cir. 1986). The Commissioner's decision must be upheld if “the evidence is susceptible to more than one rational interpretation.” Andrews, 53 F.3d at 1039-40.

         Discussion

         On appeal, Plaintiff asserts the ALJ erred by: 1) failing to include the limiting effects of Plaintiff's vision impairment in the hypothetical to the VE and the RFC determination; 2) failing to properly evaluate medical opinion evidence; 3) failing to provide clear and convincing reasons supported by substantial evidence to discredit Plaintiff's symptom testimony; and 4) improperly discrediting lay witness evidence.

         I. Step Two Findings

         Plaintiff argues the ALJ erred in failing to find Plaintiff's keratoconus was a severe impairment at Step Two, and as a result, the hypothetical posed to the VE and the ALJ's RFC determination were defective. The Commissioner argues the ALJ did not err because Plaintiff's vision could be corrected, and because a reasonable person could find his eye condition caused no significant limitation on his ability to perform work-related activities. Def.'s Br. at 2-5.

         A. ...


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