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Bisconer v. Berryhill

United States District Court, D. Oregon, Portland Division

February 1, 2018

JANET L. BISCONER, Plaintiff,
v.
NANCY A, BERRYHILL, Commissioner of Social Security Administration, Defendant.

          MERRILL SCHNEIDER Attorney for Plaintiff.

          BILLY J. WILLIAMS United States Attorney.

          RENATA GOWIE Assistant United States Attorney.

          JORDAN D. GODDARD Special Assistant United States Attorney.

          FINDINGS AND RECOMMENDATION

          John V. Acosta United States Magistrate Judge.

         Janet Lynn Bisconer ("Bisconer") seeks judicial review of the final decision by the Social Security Commissioner ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("SSA"). This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based on a careful review of the record, the Commissioner's decision should be REVERSED and REMANDED for further proceedings.

         Procedural Background

         Bisconer filed for DIB and SSI on November 12, 2013, alleging disability as of November 12, 2013, due to degenerative bone disease (multiple bones); "veins breaking;" blood clots; and a history of alcoholism. Tr. 73. Her application was denied initially and upon reconsideration. Tr. 133, 146. Bisconer subsequently amended her alleged onset date to December 1, 2007. Tr. 21. A hearing was held on April 5, 2016, before an Administrative Law Judge ("ALJ"); Bisconer was represented by counsel and testified, as did a vocational expert ("VE").[1] Tr. 40. On July 28, 2016, ALJ Steve Lynch issued a decision finding Bisconer not disabled. Tr. 21-32. Bisconer requested timely review of the ALJ's decision and, after the Appeals Council denied her request for review, filed a complaint in this Court. Tr. 1-5.

         Factual Background

         Born in 1963, Bisconer was 44 years old on the amended disability onset date and the date last insured ("DLI"). Tr. 24. She completed high school high school and later attended accredited small-business classes. Tr. 42, 73. She previously worked as a medical technician for a psychiatric facility, a forklift driver, and a warehouse worker, Tr. 77.

         Standard of Review

         The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989), Substantial evidence is "more than a mere scintilla. It 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 quotations omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." 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).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant 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." 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert,482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1502 and 404.920. First, the Commissioner considers whether a claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 ...


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