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Muccigrosso v. Berryhill

United States District Court, D. Oregon

November 13, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          Merrill Schneider Schneider Kerr & Robichaux Attorney for Plaintiff

          Billy Williams United States Attorney Janice Hebert, Thomas Elsberry Special Assistant United States Attorney Attorneys for Defendant

          OPINION & ORDER


         Plaintiff Donald Peter Muccigrosso, Jr. 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. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). The issues before the court are whether the Administrative Law Judge (“ALJ”) erred by: (1) discounting Plaintiff's symptom testimony; (2) discounting the opinions of medical providers; (3) discounting lay witness testimony; and (4) by relying on the Vocational Expert's (“VE”) testimony that Plaintiff could perform certain jobs in the national economy. Because the ALJ improperly discredited testimony that, when credited as true, would warrant awarding benefits, the Court reverses the Commissioner's final decision and remands this case for an immediate award of benefits.


         Plaintiff applied for DIB and SSI on August 3, 2010, alleging a disability onset date of December 31, 2005. Tr. 607, 685.[1] Plaintiff's application was denied initially and upon reconsideration. Tr. 685. Plaintiff's first administrative hearing was held before ALJ Riley Atkins on December 12, 2012. Tr. 34. ALJ Atkins denied Plaintiff's claims in a written decision issued on December 21, 2012. Tr. 13. The Appeals Council denied review, rendering ALJ Atkins's decision final. Tr. 1-3. United States District Court Judge Michael McShane reversed the Commissioner's decision and remanded the case for further administrative proceedings on June 30, 2015. Tr. 684. Judge McShane ordered that upon remand:

1. The ALJ shall revise [P]laintiff's RFC to reflect functional limitations on repetitive lifting, bending and stooping, and sitting in a stationary position.
2. The ALJ shall make new findings under step five of the sequential evaluation and obtain supplemental VE evidence.

Tr. 699. On March 22, 2016, Plaintiff appeared for his second administrative hearing before ALJ Paul Robeck. ALJ Robeck issued a partially favorable decision, finding that Plaintiff was disabled as of his fifty-fifth birthday, November 23, 2014. Tr. 617. ALJ Robeck also determined, however, that Plaintiff was not disabled from December 31, 2010, through November 23, 2014. Tr. 618-20. Plaintiff now seeks judicial review of that decision.


         A claimant is disabled if 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). Disability claims are evaluated according to a five-step procedure. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.

         At 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). At step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         At step three, the Commissioner determines whether claimant's impairments, singly or in combination, meet or equal “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.

         At step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (“RFC”) 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. At 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 its 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 found that Plaintiff had not engaged in substantial gainful activity since December 31, 2010. Tr. 607.

         At step two, the ALJ determined that Plaintiff had the following severe impairments: “status post ankle fusion/arthrodesis; right shoulder AC joint arthrosis; and degenerative disc disease with a history of laminectomy in 2006[.]” Id.

         At step three, the ALJ found that Plaintiff's impairments or combinations of impairments did not meet or equal the severity of one of the listed impairments. Tr. 609. Specifically, the ALJ concluded that Plaintiff's “physical impairment of degenerative disc disease does not meet or medically equal the criteria of listing 1.04 (Disorders of the spine), or any listing in the Listing of Impairments[.]” Id. The ALJ also concluded that Plaintiff's ankle and shoulder conditions did not meet or equal listing 1.02. Id.

         Before step four, the ALJ determined that Plaintiff had the RFC to perform modified light work with the following limitations:

[P]laintiff can lift and carry 20 pounds occasionally and 10 pounds frequently. He can stand and walk with normal breaks approximately 2 out of 8 workday hours and sit for approximately 6 out of 8 workday hours. The claimant cannot climb anything other than stairs and ramps. The claimant can no more than occasionally stoop and bend. The claimant cannot engage in work at shoulder level or above. The claimant is unable to stand or sit in any stationary position for more than two consecutive hours.

Tr. 609-10.

         At step four, the ALJ determined that Plaintiff has been unable to perform any past relevant work as a registered nurse since December 31, 2005. Tr. 617.

         At step five, the ALJ determined that on November 23, 2009, Plaintiff's age category changed to an individual closely approaching advanced age and on November 23, 2014, Plaintiff's age category changed again to an individual of advanced age. Id. Accordingly, the ALJ found that prior to November 23, 2014, transferability of Plaintiff's job skills was not material to determining disability. Id. Beginning on November 23, 2014, however, the ALJ found that Plaintiff had not been able to transfer job skills to other occupations. Therefore, the ALJ concluded prior to November 23, 2014, given Plaintiff's age, education, work experience, and RFC, there were jobs that existed in the national economy in significant numbers that Plaintiff could have performed Those jobs included: mail sorter; price marker; and packing line worker. Tr. 617-18. The ALJ found that beginning on November 23, 2014, there were no jobs that Plaintiff could perform and that he was disabled within the meaning of the Act. Tr. 619.


         A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “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.” Id. (internal quotation marks omitted). Courts consider the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's.”) (internal quotation marks omitted).


         Plaintiff contends that the ALJ's decision was not supported by substantial evidence and contains legal errors. Specifically, Plaintiff argues that the ALJ made the following four errors. First, the ALJ improperly rejected Plaintiff's subjective symptom testimony. Second, the ALJ improperly discredited the medical opinions treating neurological surgeon Dr. Darrell Brett, reviewing physician Dr. Mark Shoag, and examining physician Dr. Paolo Punsalan. Third, the ALJ improperly discredited the lay testimony of Plaintiff's friend, Lisa Cheeley. Lastly, the ALJ improperly relied on VE testimony that did not incorporate all of Plaintiff's limitations.

         I. Plaintiff's ...

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