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Lansing v. Commissioner Social Security Administration

United States District Court, D. Oregon

November 9, 2017

MICAH HEATH LANSING, Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.

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

          Janice E. Herbert Assistant United States Attorney

          Sarah L. Martin Social Security Administration Office of the General Counsel Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.

         Plaintiff Micah Lansing 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.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB on March 27, 2014, and SSI on February 9, 2015, alleging disability as of October 2, 2006. Tr. 90, 239.[1] His applications were denied initially and on reconsideration. Tr. 140-44, 148-50. On June 11, 2016, Plaintiff appeared, without counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 35. On March 8, 2016, the ALJ found Plaintiff not disabled. Tr. 26. The Appeals Council denied review. Tr. 1.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on major depression, intervertebral disc syndrome, synovitis, hypertensive vascular disease, tinnitus, limited extension of the knees, hiatal hernia, flat foot condition, and migraines. Tr. 285. He was 41 at the time of the administrative hearing. Tr. 40. Plaintiff has a high school education and past relevant work experience as a field artillery crewmember. Tr. 286, 24.

         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 after his alleged onset date of October 2, 2006. Tr. 18. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: “depression; post-traumatic stress disorder (PTSD)/anxiety; obesity; degenerative disc disease and a history of various sprains and strains.” Id. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 19. 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 further limited to no more than occasional stooping, kneeling, crouching, and crawling. He must avoid climbing ropes, ladders, or scaffolds. He can occasionally reach, handle, grasp, or finger with the right upper extremity. He must avoid concentrated exposure to extreme temperatures, as well as exposure to unprotected heights, moving machinery, or similar workplace hazards. He is limited to no more than simple, repetitive, routine tasks requiring no more than occasional brief superficial interaction with the general public.

         Tr. 21. Because of these limitations the ALJ concluded that Plaintiff could not perform his past relevant work as a field artillery crewmember. Tr. 24. 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 “bakery conveyor line worker, ” “dealer, account clerk, ” and “laminating-machine off-bearer.” Tr. 25. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 26.

         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 (1) failing to account for all of Plaintiff's social limitations in the ALJ's RFC determination and his hypothetical to the Vocational Expert (VE); (2) proceeding with the hearing without obtaining a voluntary waiver of representation from Plaintiff; (3) failing to meet his heightened duty to probe into the record and explore all relevant facts at the hearing; (4) failing to consider the medical source opinions of Mary Jenkins Gunn, MSW, LCSW, Charles Sprague, MD, and Victor Richenstein, MD; (5) failing to provide sufficient reasons for assigning less weight to the VA disability decision; and (6) failing to provide clear and convincing reasons for discounting Plaintiff's symptom testimony. Pl.'s Opening Br. 5, ECF 15. Plaintiff's arguments are unavailing and, thus, the Court affirms the ALJ's decision.

         I.RFC Assessment & VE Hypothetical

         Plaintiff first alleges that the ALJ erred at step five because his RFC and hypothetical to the VE failed to take into account all of Plaintiff's social limitations proposed by a state agency psychological consultant. The RFC is the most a person can do, despite his physical or mental limitations. 20 C.F.R. §§ 404.1545, 416.945. In formulating an RFC, the ALJ must consider all medically determinable impairments, including those that are not “severe, ” and evaluate “all of the relevant medical and other evidence, including the claimant's testimony.” Id.; SSR 96-8p. An ALJ may rely on the testimony of a VE to determine whether a claimant retains the ability to perform past relevant work or other work in the national or regional economy at step five. See Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). The ALJ is required to include only those limitations which are supported by substantial evidence in the RFC and hypotheticals posed to a VE. See Id. at 1163-65. “Conversely, an ALJ is not free to disregard properly supported limitations, ” including improperly discredited symptom testimony provided by the claimant or lay witness. Robbins, 466 F.3d at 886. If the assumptions presented in the hypothetical are not supported by substantial evidence in the record, “the vocational expert's opinion has no evidentiary value.” Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001).

         The ALJ gave full weight to the January 2015 assessment of state agency psychological consultant Megan Nicoloff, Psy.D. Tr. 23. Dr. Nicoloff found that “the claimant's depression and anxiety would reasonably restrict him to ‘simple routine tasks' that avoided extensive interaction with the general public.” Tr. 23, 109, 134. The RFC and the hypothetical posed to the VE both accounted for “no more than occasional brief superficial interaction with the general public.” Tr. 21, 59.

         Plaintiff argues the ALJ failed to include limitations on supervisor and coworker interaction proposed by Dr. Nicoloff in his RFC and hypothetical. Pl. Opening Br. 6. The Commissioner responds, and this Court agrees, that such limitations were not present in Dr. Nicoloff's opinion. Def. Resp. Br. 4. In her assessment, Dr. Nicoloff indicated that he was “not significantly limited” in his ability to interact with supervisors or coworkers. Tr. 109, 134. Rather, she found that Plaintiff is “limited to interactions with coworkers and supervisors and should not be required to interact extensively with the general public.” Id. (emphasis added). The ALJ took these limitations into account by limiting Plaintiff's interactions with the general public. Tr. 21. Moreover, even if Plaintiff's interpretation was a reasonable one, this Court will not substitute its own judgment for that of the ALJ when his interpretation is supported by a rational reading of the record. See Batson, 359 F.3d at 1193. Accordingly, the ALJ has not erred in formulating the RFC or hypothetical posed to the VE.

         II. Plaintiff's ...


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