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Butner v. Berryhill

United States District Court, D. Oregon

November 20, 2017

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

          Katherine L. Eitenmiller Mark A. Manning HARDER, WELLS, BARON & MANNING, P.C. Attorneys for Plaintiff

          Billy 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 Defendant.

          OPINION & ORDER

          Marco A. Hernandez United States District Judge.

         Plaintiff 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 Commissioner's decision.


         Plaintiff 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.


         Plaintiff 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.


         A 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. §§ 423(d)(1)(A), 1382c(3)(a).

         Disability 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.

         In 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). 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.

         In step 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.

         In 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 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. §§ 404.1566, 416.966.


         At step 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.

         At step 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.

         With 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 ...

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