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Curtis v. Berryhill

United States District Court, D. Oregon

February 5, 2018

CORNELIUS CURTIS, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          FINDINGS AND RECOMMENDATION

          HONORABLE PAUL PAPAK I UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         DISABILITY ANALYSIS FRAMEWORK

         To 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).

         At the 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.

         At the 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), 404.1520(c).

         If the 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).

         If the 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, [2] 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 LEXIS 5.

         At the 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 the Commissioner.

         At the 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), 404.1560(c), 404.1566.

         LEGAL STANDARD

         A 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 Cir. 2006)).

         The 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)).

         Because 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)).

         BACKGROUND

         Curtis 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.

         On June 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.

         On 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.

         Eleven 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.

         SUMMARY OF ALJ FINDINGS

         At the 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.

         At the second step, the ALJ found that Curtis had the following severe impairments: degenerative disc disease of the spine, history of ...


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