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Heinig v. Berryhiix

United States District Court, D. Oregon

January 4, 2018

ROBIN L. HEINIG, Plaintiff,

          OPINION & ORDER


         Plaintiff Robin Heinig seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying disability and disability insurance benefits pursuant to Title II of the Social Security Act. For the reasons set forth below, the decision of the Commissioner is AFFIRMED and this case is dismissed.


         Plaintiff filed a Title II application for a period of disability and disability insurance benefits on January 27, 2011. Tr. 508. Plaintiff alleged disability beginning July 15, 2010. Id. Her application was denied initially and upon review. Id. Plaintiff appeared before an Administrative Law Judge ("ALJ") at a hearing held October 23, 2012. Id. On December 7, 2012, the ALJ issued a decision finding Plaintiff not disabled. Id. The Appeals Council denied review and Plaintiff sought review before this Court in Heinig v. Commissioner, 1:14-cv-1362- MC ("Heinig 7") . Id. In Heinig I, the parties stipulated to a remand of the matter to the Commissioner for further proceedings. On July 21, 2015, Judge Michael McShane signed an order granted the stipulated remand and a judgment was entered.

         On December 10, 2015, the Appeals Council implemented this Court's Order and directed the ALJ to (1) obtain additional evidence concerning Plaintiffs impairments; (2) further consider treating and non-treating source opinions as appropriate; (3) further consider Plaintiffs maximum residual functional capacity and provide rationale and citation to the record; (4) obtain supplemental evidence from a vocational expert to determine whether Plaintiff can perform her past relevant work and/or other work in the national economy; and (5) offer Plaintiff another opportunity for a hearing. Tr. 508.

         A second hearing was held on May 9, 2016. Tr. 508. On June 9, 2016, the ALJ issued a decision finding Plaintiff not disabled. Tr. 527. This appeal followed.


         A claimant is disabled if he or she is 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). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm 'r, 648 F.3d 721, 724 (9th Cir. 2011).

The five-steps are; (1) Is the claimant presently working in a substantially gainful activity? (2) Is the claimant's impairment severe? (3) Does the impairment meet or equal one of a list of specific impairments described in the regulations? (4) Is the claimant able to perform any work that he or she has done in the past? and (5) Are there significant numbers of jobs in the national economy that the claimant can perform?

Id. at 724-25; see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Bustamante, 262 F.3d at 953. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404, 1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54.


         The ALJ performed the sequential analysis. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of July 15, 2010. Tr. 511. The ALJ determined that Plaintiff had the following severe impairments: diabetes mellitus with neuropathy of the feet; degenerative disc disease of the cervical spine, status post-fusion; degenerative disc disease of the lumbar spine; status-post bilateral hip replacement; and obesity. Id. The ALJ determined that Plaintiffs severe impairments did not meet or equal a listed impairment. Tr. 512.

         The ALJ determined that Plaintiff had the RFC to perform light work with the following additional restrictions: she must be allowed to alternate between sitting and standing throughout the day; no more than frequent crawling, crouching, kneeling, stooping, balancing, or climbing of stairs or ramps; no more than occasional climbing of ropes, ladders, and scaffolds; no more than frequent overhead reaching bilaterally; and avoid working around heights, moving machinery, and similar hazards, Tr. 513.

         The ALJ found that Plaintiff was able to perform her past relevant work as a call center supervisor. Tr. 525. In the alternative, the ALJ found that Plaintiff could perform work as a mail sorter, office helper, or storage facility rental clerk, Tr. 527. Accordingly, the ALJ determined that Plaintiff was not disabled, Id.


         The district court must affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm V, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotation marks omitted), In reviewing the Commissioner's alleged errors, this court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion. Batson, 359F.3datll98 (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, cannot affirm the Commissioner's decision on a ground that the agency did not invoke in making its decision. Stout v. Comm V, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).


         Plaintiff asserts that the ALJ erred by (1) improperly rejecting Plaintiffs subjective symptom testimony; (2) improperly rejecting the medical opinion of treating physician Alan Mersch, D.O.; (3) improperly rejecting the opinion of physician's assistant Emily Rogers; (4) improperly categorizing Plaintiffs past relevant work; (5) failing to follow the remand instructions of the Appeals Council; and (6) failing to meet the Commissioner's burden at step five based on an improper formulation of Plaintiff s RFC.

         I. Plaintiffs Subjective Symptom Testimony

         Plaintiff asserts that the ALJ erred by rejecting her subjective symptom testimony. To determine whether a claimant's testimony is credible, an ALJ must perform a two-stage analysis. 20 C.F.R. § 416.929. The first stage is a threshold test in which the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Molina v. Astme,674 F.3d 1104, 1112 (9th Cir. 2012). At the second stage of the credibility analysis, absent evidence of malingering, the ALJ must provide clear and ...

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