United States District Court, D. Oregon
SYDNEY W. MCLELLAN Plaintiff,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
Hall Bennett, Hartman, Morris & Kaplan, LLP Attorney for
E. Herbert Assistant United States Attorney Lars J. Nelson
Social Security Administration Office of the General Counsel
Attorneys for Defendant.
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
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.
applied for DIB and SSI on July 8, 2013, alleging disability
as of August 1, 2012. Tr. 207-08. 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.
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.
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 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
[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
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.
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 (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. 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.
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
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.
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.
argues that the ALJ did not provide clear or convincing
reasons for discrediting Plaintiff's testimony. The Court