United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
HONORABLE PAUL PAPAK I UNITED STATES MAGISTRATE JUDGE
Cornelius Curtis filed this action on October 7, 2016,
seeking judicial review of the Commissioner of Social
Security's final decision denying his application for
disability insurance benefits ("DIB") under Title
II of the Social Security Act (the "Act"). This
court has jurisdiction over Curtis' action pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). I have considered
all of the parties' briefing and the relevant evidence in
the administrative record. For the reasons set forth below,
the Commissioner's final decision should be AFFIRMED and
this case should be DISMISSED.
establish disability within the meaning of the Act, a
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 claimant has made the requisite
demonstration. See Bowen v. Yuckert, 482 U.S. 137,
140 (1987); see also 20 C.F.R. §
404.1520(a)(4). At the first four steps of the process, the
burden of proof is on the claimant; only at the fifth and
final step does the burden of proof shift to the
Commissioner. See Tackett v. Apfel, 180 F.3d 1094,
1098 (9th Cir. 1999).
first step, an ALJ considers the claimant's work
activity, if any. See Bowen, 482 U.S. at 140;
see also 20 C.F.R. § 404.1520(a)(4)(i). If the
ALJ finds that the claimant is engaged in substantial gainful
activity, the claimant will be found not disabled. See
Bowen, 482 U.S. at 140; see also 20 C.F.R.
§§ 404.1520(a)(4)(i), 404.1520(b). Otherwise, the
evaluation will proceed to the second step.
second step, the ALJ considers the medical severity of the
claimant's impairments. See Bowen, 482 U.S. at
140-41; see also 20 C.F.R. §
404.1520(a)(4)(ii). An impairment is "severe" if it
significantly limits the claimant's ability to perform
basic work activities and Is expected to persist for a period
of twelve months or longer. See Bowen, 482 U.S. at
141; see also 20 C.F.R. § 404.1520(c). The
ability to perform basic work activities is defined as
"the abilities and aptitudes necessary to do most
jobs." 20 C.F.R. § 404.1522(b); see also
Bowen, 482 U.S. at 141, If the ALJ finds that the
claimant's impairments are not severe or do not meet the
duration requirement, the claimant will be found not
disabled. See Bowen, 482 U.S. at 141; see
also 20 C.F.R. §§ 404.1520(a)(4)(ii),
claimant's impairments are severe, the evaluation will
proceed to the third step, at which the ALJ determines
whether the claimant's impairments meet or equal
"one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Bowen, 482 U.S.
at 141; see also 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d). If the claimant's
impairments are equivalent to one of the impairments
enumerated in 20 C.F.R. § 404, Subpt. P, App. 1, the
claimant will conclusively be found disabled. See
Bowen, 482 U.S. at 141; see also 20 C.F.R.
§§ 404.1520(a)(4)(iii), 404.1520(d).
claimant's impairments are not equivalent to one of the
enumerated impairments, the ALJ is required to assess the
claimant's residual functional capacity
("RFC"), based on all the relevant medical and
other evidence in the claimant's case record.
See 20 C.F.R. § 404.1520(e). The RFC is an
estimate of the claimant's capacity to perform sustained,
work-related, physical and mental activities on a regular and
continuing basis,  despite the limitations imposed by the
claimant's impairments. See 20 C.F.R. §
404.1545(a); see also S.S.R. No. 96-8p, 1996 SSR
fourth step of the evaluation process, the ALJ considers the
RFC in relation to the claimant's past relevant work.
See Bowen, 482 U.S. at 141; see also 20
C.F.R. § 404.1520(a)(4)(iv). If, in light of the
claimant's RFC, the ALJ determines that the claimant can
still perform his or her past relevant work, the claimant
will be found not disabled. See Bowen, 482 U.S. at
141; see also 20 C.F.R. §§
404.1520(a)(4)(iv), 404.1520(f). In the event the claimant is
no longer capable of performing his or her past relevant
work, the evaluation will proceed to the fifth and final
step, at which the burden of proof is, for the first time, on
fifth step of the evaluation process, the ALJ considers the
RFC in relation to (he claimant's age, education, and
work experience to determine whether the claimant can perform
any jobs that exist in significant numbers in the national
economy. See Bowen, 482 U.S. at 142; see
also 20 C.F.R. §§ 404.1520(a)(4)(v),
404.1520(g), 404.1560(c), 404.1566. If the Commissioner meets
its burden to demonstrate that the claimant is capable of
performing jobs existing in significant numbers in the
national economy, the claimant is conclusively found not to
be disabled. See Bowen, 482 U.S. at 142; see
also 20 C.F.R. §§ 404.1520(a)(4)(v),
404.1520(g), 404.1560(c), 404.1566. A claimant will be found
entitled to benefits if the Commissioner fails to meet his
burden at the fifth step. See it!.; see also 20
C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g),
reviewing court must affirm an ALJ's decision if the ALJ
applied proper legal standards and his or her findings are
supported by substantial evidence in the record. See
42 U.S.C. § 405(g); see also Batson v. Comm'r
for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). "'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." Lingenfelter v.
As-true, 504 F.3d 1028, 1035 (9th Cir. 2007), (citing
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
court must review the record as a whole, "weighing both
the evidence that supports and the evidence that detracts
from the Commissioner's conclusion." Id.,
(citing Reddick v. Chafer, 157 F.3d 715, 720 (9th
Cir. 1998)) (internal quotation marks omitted). The court may
not substitute its judgment for that of the Commissioner.
See id., (citing Robbins, 466 F.3d at 882);
see also Edhmd v. Massanari, 253 F.3d 1152, 1156
(9th Cir. 2001). If the ALJ's interpretation of the
evidence is rational, it is immaterial that the evidence may
be "susceptible [of] more than one rational
interpretation." Magallanes v. Bowen, 881 F.2d
747, 750 (9th Cir. 1989), (citing Gallant v.
Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984)).
Curtis is representing himself pro se, the court
construes his pleadings liberally. See, e.g., Moles v.
Berryhill, No. 3:15-cv-02143-JE, 2017 WL 2225577, at *3
(D. Or. May 22, 2017) (citing Gannon v. City of Los
Angeles, 828 F.3cl 837, 846 (9th Cir. 2016)).
was born in July, 1964. Tr. 98. He obtained a high school
diploma and completed some college coursework. Tr. 99. Curtis
is a U.S. Army veteran: he served from April, 1984 to
February, 1987 and from December, 1988 to September, 2008.
Tr. 995. Curtis claimed that he was a Green Beret and that he
engaged in combat during the Gulf War; however, the VA
reported that his personnel record contained no support for
either claim. Tr. 59 61, 1088.
15, 2011, Curtis was seen for a psychiatric evaluation. Tr.
549. It was noted that he had been prescribed Citalopram in
2007 and reported significant improvement. Id. Dr.
Mansoor observed that "[r]egarding PTSD, his symptoms
are mild." Tr. 552. A few months later, on October 2,
2011, Curtis reported severe, sharp back pain radiating down
both legs. Tr. 938. Three days later, Curtis sought
Hydrocodone for his pain. Tr. 697. On October 12, 2011,
despite his doctor recommending physical therapy, Curtis
declined. Tr. 691. On November 7, 2011, Curtis reported
chronic neck and back pain. Tr. 544. Curtis described his
back pain as being 0 out of 10, but explained that two weeks
earlier his back had locked up and he was unable to get out
of bed. Tr. 545. After November 7, 2011, Curtis did not seek
treatment for back pain for more than a year.
December 5, 2012, Curtis presented with back pain and
reported that he had been experiencing intermittent back pain
for the past 6 months. Tr. 935. Curtis rated his current back
pain as "moderate." Tr. 935. One week later, Curtis
reported back pain that had been 10 out of 10 for a couple of
days. Tr. 384. Dr. Scribner noted tenderness in the lower
back and shoulder. Tr. 385.
months later, on November 15, 2013, Curtis sought treatment
for lower back pain with right leg weakness and numbness. Tr.
896. A few days later, Curtis presented at the Emergency
Department complaining of pain that had lasted for 4 days,
but he reported no prior episodes of back pain. Tr. 931.
Shortly thereafter, on November 21, Curtis reported lower
back muscle spasms and lower back pain, and Dr. Scribner
noted tenderness in the lower back and paraspinal muscles.
Tr. 382-83. Curtis was again advised to do physical therapy,
and again he declined. Tr. 383.
OF ALJ FINDINGS
first step of the five-step sequential evaluation process,
the Administrative Law Judge found that Curtis did not engage
in substantial gainful activity at any time during the period
from the alleged onset date of January 1, 2011, through his
date last insured of December 31, 2015. Tr. 24.
second step, the ALJ found that Curtis had the following
severe impairments: degenerative disc disease of the spine,
history of ...