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Flagg v. Berryhill

United States District Court, D. Oregon, Eugene Division

November 13, 2017

WILLIAM E. FLAGG, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff 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.


         In May 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.


         In an 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)) (alterations normalized).

         Even 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).


         The 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.

Tr. 18.

         At step 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).

         Step 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 ...

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