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Velez v. Berryhill

United States District Court, D. Oregon, Eugene Division

January 31, 2018

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



         Plaintiff Jennifer Velez brings this action pursuant to the Social Security Act ("the Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner found plaintiff not disabled under the Act and denied her application for Supplemental Security Income ("SSI"). For the reasons set forth below, the Commissioner's decision is reversed and remanded for further proceedings.


         Plaintiff applied for SSI on May 16, 2012 and was denied on July 10, 2012. She was denied again upon reconsideration on Oct. 30, 2012. She subsequently appeared, unrepresented, at a healing before an ALJ on June 20, 2014. The ALJ set the hearing over so plaintiff could attend a consultative examination, The ALJ reconvened the hearing on January 27, 2015; plaintiff testified unrepresented, and a vocational expert ("VE") also testified. The ALJ issued her decision on May 15, 2015, and after the Appeals Council denied review, plaintiff filed a complaint in this Court.


         "An ALJ's disability determination should be upheld unless it contains [harmful] legal error or is not supported by substantial evidence." Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). "Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)) (internal quotation marks omitted). The record must be evaluated as a whole, and the court must weigh "both the evidence that supports and the evidence that detracts from the Commissioner's conclusion[.]" Id. The court "may not affirm simply by isolating a specific quantum of supporting evidence." Id. 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." Edhmdv. Massanah, 253 F.3d 1152, 1156 (9th Cir. 2001).


         The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months[J" 42 U.S.C. § 423(d)(1)(A).

         "The Secretary has established a five-step sequential evaluation process for determining whether a person is disabled." Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (citing 20 C.F.R. §§ 404, 1520, 416.920). At step one, the ALJ found plaintiff has not engaged in "substantial gainful activity" since the alleged disability onset date of Jan. 31, 2012, Tr, 18; 20 C.F.R. §§ 4l6.92O(a)(4)(i), (b). At step two, the ALJ found that plaintiff had "the following severe impairments: morbid obesity, degenerative disc disease status post-surgery, mild disc bulge at ¶ 2-3, and chronic pedal edema secondary to history of chronic deep vein thrombosis (DVT)." Tr. 18; see also 20 C.F.R. § 4l6.92O(a)(4)(ii), (c). At step three, the ALJ determined 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. Tr. 19; see also 20 C.F.R. §§ 4l6, 92O(a)(4)(iii), (d). The ALJ found plaintiff retained

the residual functional capacity to perform light work as defined in 20 C[.F, R. §] 416.967(b) with exceptions. She can lift and carry up to ten pounds frequently and 20 pounds occasionally. She can sit for two hours at a time, for up to six hours in an eight-hour workday. She can stand for 30 minutes at a time, for up to two hours in an eight-hour workday. She can walk for one hour, for up to four hours total in an eight-hour workday. She can only occasionally operate foot controls bilaterally. She can occasionally climb ramps or stairs, and she can never climb ramps, ladders or scaffolds. She can occasionally balance, stoop, knee[l], crouch and crawl. She should not work around hazards, including dangerous machinery, or unprotected heights, She can have only occasional exposure to temperature extremes. She also can only have occasional exposure to vibration.

Tr. 20; see also 20 C.F.R. § 416.920(e).

         Plaintiffs only period of gainful employment from the last fifteen years is when she served as a caregiver for six months while her mother was in hospice. In the written decision, the ALJ briefly addressed plaintiffs past employment, saying "her job entailed making sure [her mother] took her medications and giving [her mother] meals, but [plaintiff] did not prepare them. [Plaintiff] reported she did not do any lifting and she mainly just spent time with her mother." Tr. 23. At step four, the ALJ concluded that plaintiff "is capable of performing past relevant work as a companion, " linking plaintiffs work as a caregiver to Dictionary of Occupation Titles number 309.677-010. Tr. 23. Consequently, the ALJ found plaintiff not disabled as of her application date and denied her application for SSI. Tr. 24, DISCUSSION

         Plaintiff objects to the ALJ's finding with respect to step four and claims that finding is not based on substantial evidence. Plaintiffs argument is narrow: she does not challenge the ALJ's determination that she was capable of returning to the work she did while serving as her mother's caregiver. Rather, her argument rests on her contention that the companion work does not qualify as past relevant work because she "did not perform substantial duties so as to render this work substantial gainful activity." PL's Opening Br. 4 (emphasis in original).

         The Social Security regulations define "[p]ast relevant work" as "work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it." 20 C.F.R. § 416.960(b). "Substantial gainful activity" is defined as "work activity that involves doing significant physical or mental activities." 20 C.F.R. § 416.972(a). The burden falls on the plaintiff to establish she cannot perform past relevant work. See Pinto v. Massanari,249 F.3d 840, 844 (9th Cir. ...

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