United States District Court, D. Oregon, Eugene Division
WILLIAM E. FLAGG, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
AIKEN UNITED STATES DISTRICT JUDGE
William E, Flagg, Jr., brings this action pursuant to the
Social Security Act ("Act"), 42 U.S.C. §
405(g), to obtain judicial review of a final decision of the
Commissioner of Social Security ("Commissioner").
In 2008, the Commission found plaintiff disabled. On October
6, 2011, the Commissioner found plaintiffs impairments had
improved such that he was no longer disabled. In this appeal,
plaintiff challenges that disability cessation decision. For
the reasons set forth below, the Commissioner's decision
is affirmed and this case is dismissed.
2008, the Commissioner found plaintiff was disabled and
awarded him Disability Insurance Benefits ("DIB")
with an effective date of November 25, 2003. On October 6,
2011, the Commissioner informed plaintiff that he was no
longer disabled and his DIB would cease, The disability
cessation decision was upheld on reconsideration and referred
to an ALJ for a hearing. That hearing took place on July 22,
2014; plaintiff testified and was represented by counsel, and
a vocational expert ("VE") also testified. In a
written decision dated February 26, 2015, the ALJ upheld the
cessation decision. After the Appeals Council denied review,
plaintiff filed a complaint in this Court.
initial application for Social Security benefits, the
claimant bears the initial burden of establishing disability.
Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir.
1986). "Once a claimant has been found to be disabled,
however, a presumption of continuing disability arises in her
favor." Bellamy v. Sec. Health & Human
Servs., 755 F.2d 1380, 1381 (9th Cir. 1985).
Accordingly, in a disability cessation case, the Commissioner
has the burden to rebut the presumption of continuing
disability. Id. The Commissioner may find a
disability has ceased- and may terminate disability
benefits-only when substantial evidence shows that "(1)
'there has been any medical improvement in the
claimant's impairment' and (2) the claimant 'is
now able to engage in substantial gainful
activity.'" Attmore v. Colvin, 827 F.3d
872, 873 (9th Cir. 2016) (quoting 42 U.S.C. § 423(f)(1))
though the Commissioner bears the burden of proof in
cessation cases, the standard of review on appeal is the same
as the standard in other Social Security disability cases.
Bellamy, 755 F.2d at 1381. The district court must
affirm the Commissioner's decision if it is based upon
proper legal standards and the findings are supported by
substantial evidence in the record. 42 U.S.C. § 405(g);
Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir.
2010). "Substantial evidence is 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." Gutierrez v. Comm'r
of Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014)
(citation and quotation marks omitted). The court must weigh
"both the evidence that supports and the evidence that
detracts from the ALJ's conclusion, " Mayes v.
Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the
evidence is subject to more than one interpretation but the
Commissioner's decision is rational, the Commissioner
must be affirmed, because "the court may not substitute
its judgment for that of the Commissioner." Edlund
v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
Commissioner has established an eight-step process to
determine whether a disability has ceased. Easfy v.
Astrue, 2009 WL 928682, *3 (D. Or. Apr. 2, 2009). The
process requires the identification of the most recent
decision in which the claimant was found to be disabled,
termed the comparison point decision ("CPD") under
the regulations. Anderson v. Colvin, 223 F.Supp.3d
1108, 1115 (D. Or. 2016). The ALJ identified the disability
decision issued May 27, 2008, as the CPD. The ALJ noted that
[a]t the time of the CPD the claimant had the following
medically determinable impairments: chronic back pain
secondary to degenerative disc disease; pain disorder with
psychological factors and a general medical condition, and
cognitive disorder not otherwise specified. These impairments
were found to result in the residual functional capacity to
perform sedentary work, except he would not be able to
complete a full work day or workweek due to waxing and waning
of pain and psychological symptoms and would miss more than
two days of work per month.
one, the ALJ found plaintiff had not engaged in substantial
gainful activity through December 1, 2012. 20 C.F.R. §
404.1594(f)(1). At step two, the ALJ found plaintiffs
impairments, whether considered singly or in combination, did
not meet or equal "one of the listed impairments"
that the Commissioner acknowledges are so severe as to
preclude substantial gainful activity. Id. §
404.1594(f)(2). At step three, the ALJ found there had been
medical improvement since the CPD with respect to plaintiffs
physical and mental impairments. Id. §
404.1594(f)(3). At step four, the ALJ found that medical
improvement was related to plaintiffs ability to do work.
Id. § 404.1594(f)(4).
five only applies when there has been no medical improvement
or when that improvement does not affect ability to work.
Id. § 404.1594(f)(5). Although the ALJ did not
make any express findings at step six, he implicitly found
plaintiffs impairments remained severe when he reevaluated
plaintiffs RFC. Id. §§ 404.1594(f)(6).
Like in the CPD, the ALJ limited plaintiff to sedentary work.
The ALJ further restricted plaintiff to unskilled, simple,
routine tasks. The ALJ departed from the CPD when he found
plaintiff would be off-task "only 9% of the time"
and would miss "only one day of work per month."
Tr. 19, At step seven, the ALJ concluded plaintiff could not
perform past relevant work. 20 C.F.R. § 404.1594(f)(7).
At step eight, the ALJ concluded plaintiff ...