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McLellan v. Commissioner, Social Security Administration

United States District Court, D. Oregon

November 3, 2017


          Nelson Hall Bennett, Hartman, Morris & Kaplan, LLP Attorney for Plaintiff.

          Janice E. Herbert Assistant United States Attorney Lars J. Nelson Social Security Administration Office of the General Counsel Attorneys for Defendant.

          OPINION & ORDER


         Plaintiff Sydney McLellan brings this action for judicial review of the Commissioner's final decision denying his application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act and 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.


         Plaintiff applied for DIB and SSI on July 8, 2013, alleging disability as of August 1, 2012. Tr. 207-08.[1] His application was denied initially and on reconsideration. Tr. 133-140, 142-47. On June 15, 2015, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 27. On July 31, 2015, the ALJ found Plaintiff not disabled. Tr. 19. The Appeals Council denied review. Tr. 1.


         Plaintiff alleges disability based on ankylosing spondylitis. Tr. 250. He was 34 at the time of the administrative hearing. Tr. 32. Plaintiff has a 10th grade education and past relevant work experience as a caregiver. Tr. 251, 17.


         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.


         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after his alleged onset date of August 1, 2012. Tr. 11. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: degenerative disk disease of the lumbar spine, ankylosing spondylitis, sacroliitis, and chronic low back pain. Tr. 12. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 13. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following limitations:

[Plaintiff] is able to stand and walk for four hours in an eight-hour workday and is able to sit for four hours in an eight-hour workday. The claimant is limited to an occasional operation of foot controls. The claimant should avoid climbing ladders, ropes, and scaffoldings but can occasionally climb stairs and ramps. The claimant is limited to less than occasional stooping, kneeling, crouching, and crawling.

Tr. 13. Because of these limitations the ALJ concluded that Plaintiff could not perform his past relevant work as a caregiver. Tr. 17. But 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 “document preparer” and “telemarketer.” Tr. 18. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 18-19.


         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)).


         Plaintiff contends that the ALJ erred by (1) failing to admit additional evidence into the record; (2) improperly discrediting Plaintiff's testimony; (3) improperly discrediting the opinion of Plaintiff's treating physicians, including that of his primary care doctor, Charles Stein DO; and (4) improperly discrediting the opinion of Plaintiff's wife as a lay witness.[2] Pl.'s Opening Br. 2, 4, ECF 13. Operating in the background of these arguments, Plaintiff asserts that the ALJ's decision is internally inconsistent and misstates the record. Id. at 2-3. Plaintiff's arguments are unavailing and, thus, the Court upholds the ALJ's decision.

         I. Omitted Records

         Plaintiff asserts that a portion of the record was omitted from the transcript and was not considered by the ALJ or the Appeals Council. Generally, new evidence submitted during an appeal to the district court will not be considered unless “the new evidence is material to a disability determination and . . . a claimant has shown good cause for having failed to present the new evidence to the ALJ earlier.” Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001). The ALJ has a responsibility to develop the record and must consider every medical opinion received by the administration. 42 U.S.C. § 423(5)(B); 20 CFR § 404.1527(c) (“Regardless of its source, we will evaluate every medical opinion we receive.”). But the burden is on the plaintiff to establish that the ALJ's decision was based on a legal error. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Shineski v. Sanders, 556 U.S. 396, 409 (2009) (“The burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.”). Here, Plaintiff has not met this burden.

         The Commissioner argues that Plaintiff has not demonstrated he is eligible for relief under sentence six of 42 U.S.C. § 405(g). In this case, however, Plaintiff has not submitted new evidence for the Court's review under sentence six. Pl. Reply Br. 1, ECF 15. Rather, Plaintiff alleges that the ALJ omitted evidence that was submitted two weeks prior to the administrative hearing. Pl. Opening Br. 2. With no support, he states these records would have been exhibits 9F through 13F. Id. He goes on to assert in his reply that the evidence would have contained additional symptom testimony, referrals to specialists, and confirmation of his diagnoses. Pl. Reply Br. 2.

         Yet, the record does not support Plaintiff's claim that additional medical evidence was not included in his file. At the hearing, the ALJ noted the exhibit list contained only exhibits 1F through 5F. Tr. 29. Ms. Maynard, Plaintiff's counsel, then informed the ALJ that she submitted additional exhibits thirteen days prior to the hearing. Tr. 29-30. Ms. Maynard confirmed that these records were all Kaiser medical records. Tr. 30. The ALJ admitted the exhibits at the hearing and stated that he would ensure that the documents were included in the claimant's file. Tr. 31. And the exhibit list attached to the ALJ's opinion contains three additional exhibits-6F through 8F-along with the notation “subsequent to hearing.” Tr. 24. All three exhibits are Kaiser medical records and thus match the description of the evidence given by Ms. Maynard at the hearing. Id. The ALJ's opinion also cites to Exhibit 7F. Tr. 13-17. The record suggests, therefore, that these records were both admitted into the record and used by the ALJ in making his decision. Because Plaintiff has not met his burden of showing that the ALJ committed an error, remand is not appropriate on this issue.

         II. Plaintiff's Testimony

         Plaintiff argues that the ALJ did not provide clear or convincing reasons for discrediting Plaintiff's testimony. The Court ...

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