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McCleary v. Berryhill

United States District Court, D. Oregon, Eugene Division

November 16, 2017

SCOTT MCCLEARY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant,

          OPINION AND ORDER

          ROBERT E. JONES UNITED STATES DISTRICT JUDGE

         Plaintiff Scott McCleary appeals the Commissioner's decision denying his concurrent applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the Commissioner's decision.

         PRIOR PROCEEDINGS

         McCleary alleged disability beginning February 1, 2012, due to pain in the back, hip, and right knee. Admin. R, 23, 165, 172, 180, 223. The ALJ applied the sequential disability determination process described in 20 C.F.R. sections 404.1520 and 416, 920, See Bowen v. Yuckert, 482 U, S. 137, 140 (1987). The ALJ found McCleary's ability to perform basic work activities adversely affected by obesity, mild degenerative disc disease in the lumbar spine, osteoarthritis in the right hip, and migraines. Admin. R, 26. The ALJ found that, despite these impairments, McCleary retained the residual functional capacity ("RFC") to perform a range of light work with limited climbing, limited postural activities such as balancing, stooping, kneeling, and so forth, and not even moderate exposure to workplace hazards. Admin. R, 27.

         The vocational expert ("VE") testified that a person having McCleary's age, education, work experience, and RFC could perform the activities required in light, unskilled occupations such as electronics worker, assembler of electrical accessories, and bench assembler, which represented approximately 245, 000 jobs In the national economy. Admin. R. 30, 57-58. The ALJ concluded that McCleary was not disabled within the meaning of the Social Security Act. Admin. R. 31.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings of fact are supported by substantial evidence in the record as a whole. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion. Richardson v. Per ales, 402 U.S. 389, 401 (1971). Substantial evidence may be less than a preponderance of the evidence. Rohbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Under this standard, the court must consider the record as a whole, and uphold the Commissioner's factual findings that are supported by inferences reasonably drawn from the evidence, even if another interpretation is also rational. Robbins, 466 F.3d at 882; Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

         ASSIGNMENTS OF ERROR

         The plaintiff bears the burden of showing that the ALJ erred and that any error was harmful McLeod v. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011). McCleary contends the ALJ improperly evaluated his subjective symptoms and the opinion of orthopedic surgeon Craig Mohler, M.D. McCleary contends these errors led the ALJ to elicit testimony from the VE based on assumptions that did not accurately reflect his functional limitations and to erroneously conclude that he was not disabled.

         DISCUSSION

         I. Subjective Symptoms

         In his application, McCleary alleged that he suffered back pain, leg pain, and hip pain since being hit by a car while walking in 1994. Admin. R. 196, 222. He alleged these impairments worsened gradually until they became disabling in February 2012. Admin. R. 197. He said he could not work due to constant pain in the back, hip, and right knee. Admin. R. 223. He could walk about two blocks before he needed to stop and rest. Admin. R. 228.

         At the administrative hearing, McCleary testified that limitations in his ability to move due to back and joint pain prevented him from working. His hip pain was gone after hip replacement surgery in June 2014. His migraines, which he had experienced since long before the alleged onset of disability, were controlled by medication. Admin. R. 47, 49. He said he could comfortably lift 40 to 50 pounds, but carrying as little as five pounds was difficult. McCleary said he could walk about one and a half blocks without pain, but had to stop to rest for a few minutes every block or two. Admin. R. 46-47.

         The ALJ accepted that McCleary's obesity, mild degenerative disc disease in the lumbar spine, osteoarthritis in the right hip, and migraines adversely affected his ability to perform basic work activities. Admin. R. 26. She found, however, that McCleary failed to show that his pain was so intense and persistent that it precluded him from engaging in work requiring ...


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