United States District Court, D. Oregon
Katherine L. Eitenmiller Mark A. Manning HARDER, WELLS, BARON
& MANNING, P.C. Attorneys for Plaintiff
J. Williams UNITED STATES ATTORNEY District of Oregon Janice
E. Hebert ASSISTANT UNITED STATES ATTORNEY Sarah Moum SPECIAL
ASSISTANT UNITED STATES ATTORNEY Office of the General
Counsel Social Security Administration Attorneys for
OPINION & ORDER
A. Hernandez United States District Judge.
Brian Butner brings this action seeking judicial review of
the Commissioner's final decision to deny disability
insurance benefits (DIB). This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). I affirm the
applied for DIB on January 25, 2013, alleging an onset date
of May 12, 2012. Tr. 149-52. His application was denied
initially and on reconsideration. Tr. 101-004 (Initial); Tr.
106-08 (Reconsideration). On December 1, 2014, Plaintiff
appeared, with counsel, for a hearing before an
Administrative Law Judge (ALJ). Tr. 49-73. On February 11,
2015, the ALJ found Plaintiff not disabled. Tr. 18-42. The
Appeals Council denied review. Tr. 1-7.
alleges disability based on having herniated discs, a thyroid
condition, and arthritis of the back. Tr. 167. At the time of
the hearing, he was thirty-nine years old. Tr. 52. He is a
high school graduate and has past relevant work experience as
a union ironworker. Tr. 53.
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. §§
claims are evaluated according to a five-step procedure.
See Valentine v. Comm'r, 574 F.3d 685, 689 (9th
Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the
ultimate burden of proving disability. Id.
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.
at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If
not, the claimant is not disabled.
three, the Commissioner determines whether plaintiff'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.
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 perform past relevant work, 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. §§
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since his alleged onset date.
Tr. 23. Next, at step two, the ALJ determined that Plaintiff
has the following severe impairments: failed cervical fusion
with pseudoarthrodesis at ¶ 5-6 and left upper extremity
radicular pain; degenerative disc disease of the thoracic
spine; status post arthroscopic repair of a right hip labral
tear; and obesity. Id. At step three, the ALJ found
that Plaintiff's impairments do not meet or equal, either
singly or in combination, a listed impairment. Tr. 26.
four, the ALJ concluded that Plaintiff has the RFC to perform
less than the full range of sedentary work as defined in 20
C.F.R. § 404.1567(a). Id. She included the
following limitations: (1) Plaintiff can lift ten pounds
occasionally and less than ten pounds frequently; (2) he can
sit, stand, and walk each six hours in an eight-hour day, for
a combined total of eight hours of activity, but he requires
the option to change position from seated to standing three
times an hour without interrupting essential tasks; (3) he
can never reach overhead or crawl, and he can never climb
ladders, ropes, or scaffolds; (4) he should not be exposed to
hazards such as unprotected heights or large moving
equipment; (5) he can occasionally push and pull with the
upper extremities; (6) he can occasionally twist and turn his
upper body; (7) he can occasionally bend, twist, and turn his
cervical spine; (8) he should not perform tasks that require
holding the neck in a fixed position for prolonged periods;
and (9) due to the impact of pain on concentration,
persistence, and pace, he can understand, remember, and carry
out only simple instructions in a setting with no strict
production rate. Id.
this RFC, the ALJ determined that Plaintiff is unable to
perform any of his past relevant work. Tr. 36. However, at
step five, the ALJ determined that Plaintiff is able to
perform jobs that exist in significant numbers in the economy
such as order clerk, charge account clerk, and call out