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Montavono v. Berryhill

United States District Court, D. Oregon

February 26, 2018

ALISIA ISABELLA MONTAVONO, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          Merrill Schneider Schneider Kerr & Robichaux Attorney for Plaintiff

          Billy J. Williams, United States Attorney Renata A. Gowie, Assistant United States Attorney Martha A. Boden Special Assistant United States Attorney Office of the General Counsel Social Security Administration Attorneys for Defendant

          OPINION AND ORDER

          John Jelderks United States Magistrate Judge.

         Plaintiff Alisia Isabella Montavono[2] (Plaintiff) brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for Supplemental Security Income (SSI) under the Social Security Act (the Act). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C § 636(c). For the reasons that follow, the Commissioner's decision is affirmed.

         Procedural Background

         Plaintiff protectively filed her application for SSI on February 7, 2013, alleging disability beginning April 15, 2012. Tr. 16, 211. The Commissioner denied her application initially and on reconsideration. Tr. 141, 149. Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ). Tr. 155-63. The hearing was held on May 19, 2015 before ALJ Sue Leise. Tr. 16. Plaintiff and Robert Gaffney, a vocational expert (VE), testified. Tr. 36-79. Plaintiff was represented by counsel. In a decision dated June 26, 2015, the ALJ found Plaintiff was not disabled within the meaning of the Act. Tr. 13-29. The ALJ's decision became final on June 13, 2016, when the Appeals Council denied Plaintiff's request for review. Tr. 1-4. Plaintiff now timely appeals the Commissioner's final decision.

         Factual Background

         Plaintiff was born in 1964 and was 47 years old on the date she alleges she became disabled. Tr. 211. She attended special education classes beginning in the first grade and completed the tenth grade. Tr. 275, 416. Plaintiff attended beauty school and completed a bartending certificate. Tr. 416. She has past work as an unloader/material handler. Tr. 27.

         Disability Analysis

         The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 416.920(a). The five step sequential inquiry is summarized below, as described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).

         Step One. The Commissioner determines whether the claimant is engaged in substantial gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant's case under Step Two. 20 C.F.R. § 416.920(b).

         Step Two. The Commissioner determines whether the claimant has one or more severe impairments. A claimant who does not have any such impairment is not disabled. If the claimant has one or more severe impairment(s), the Commissioner proceeds to evaluate the claimant's case under Step Three. 20 C.F.R. § 416.920(c).

         Step Three. Disability cannot be based solely on a severe impairment; therefore, the Commissioner next determines whether the claimant's impairment “meets or equals” one of the presumptively disabling impairments listed in the Social Security Administration (“SSA”) regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that meets a listing is presumed disabled under the Act. If the claimant's impairment does not meet or equal an impairment in the listings, the Commissioner's evaluation of the claimant's case proceeds under Step Four. 20 C.F.R. § 416.920(d).

         Step Four. The Commissioner determines whether the claimant is able to perform work he or she has done in the past. A claimant who can perform past relevant work is not disabled. If the claimant demonstrates he or she cannot do past relevant work, the Commissioner's evaluation of claimant's case proceeds under Step Five. 20 C.F.R. § 416.920(e), (f).

         Step Five. The Commissioner determines whether the claimant is able to do any other work. A claimant who cannot perform other work is disabled. If the Commissioner finds claimant is able to do other work, the Commissioner must show that a significant number of jobs exist in the national economy that claimant is able to do. The Commissioner may satisfy this burden through the testimony of a vocational expert (VE), or by reference to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates that a significant number of jobs exist in the national economy that the claimant is able to do, the claimant is not disabled. If the Commissioner does not meet the burden, the claimant is disabled. 20 C.F.R. § 416.920(g)(1).

         At steps one through four of the sequential inquiry, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098. At step five, the burden shifts to the Commissioner to show the claimant can perform jobs that exist in significant numbers in the national economy. Id.

         ALJ's Decision

         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since February 7, 2013, the date she protectively filed her application for SSI. Tr. 18.

         At step two, the ALJ determined that Plaintiff had the following severe impairments: degenerative disc disease, status post cervical surgery; asthma; early degenerative changes to the left knee; glaucoma; anxiety; migraines; and edema. Tr. 18. The ALJ noted that although she did not determine Plaintiff's conditions of hip bursitis and spot on lung to be severe, she accommodated for them in the residual functional capacity formulation. Tr. 18-19.

         At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or equaled a presumptively disabling impairment as set out in the Listings, 20 C.F.R. Part 404, Subpart P, App.1. Tr. 19-20.

         Next, the ALJ found that Plaintiff had the residual functional capacity (RCF) to perform light work, except that she could lift or carry 20 pounds occasionally and ten pounds frequently. Plaintiff can stand and/or walk for six hours in an eight-hour day, and can sit for six hours in an eight-hour day, with the need to alternate sitting and standing. Plaintiff can occasionally climb ramps or stairs but cannot climb ladders, ropes, or scaffolds. She can occasionally balance, stoop, and kneel, and perform overhead reaching bilaterally. She should avoid exposure to dust, fumes, odors, and gases. She should also avoid hazards, unprotected heights, and dangerous machinery. Plaintiff can have occasional, superficial interaction with the public, and can work in proximity to coworkers but cannot engage in teamwork. Tr. 20. In making her determination, the ALJ found that Plaintiff's claims regarding the intensity, persistence, and limiting effects of her symptoms were not entirely credible. Tr. 21.

         At step four, based on testimony by the VE, the ALJ found that Plaintiff was unable to perform past work as an unloader/material handler. Tr. 27.

         At step five, based upon testimony by the VE, the ALJ determined that Plaintiff could perform work as a photocopy machine operator or as an office helper, both of which exist in significant numbers in the national economy. Tr. 28. Accordingly, the ALJ found that Plaintiff had not been under a disability within the meaning of the Act since February 7, 2013. Tr. 29

         Standard of Review

         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 twelve months.” 42 U.S.C. § 1382c(3)(A). Claimants bear the initial burden of establishing disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears the burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991), and of establishing that a claimant can perform “other work” at step five of the disability analysis process. Tackett, 180 F.3d at 1098.

         The district 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 as a whole. 42 U.S.C. § 405(g); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrews, 53 F.3d at 1039. The court must weigh all of the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 771 (9th Cir. 1986). The Commissioner's decision must be upheld if “the evidence is susceptible to more than one rational interpretation.” Andrews, 53 F.3d at 1039-40.

         Discussion

         Plaintiff alleges the ALJ erred by: 1) failing to recognize certain impairments as “severe” at step two; 2) failing to properly weigh and consider medical opinion evidence; 3) improperly discrediting Plaintiff's subjective symptom allegations; 4) improperly discrediting lay witness statements; and 5) posing an “incomplete hypothetical” to the VE at step five.

         A. Step Two Determinations

         Plaintiff argues that the ALJ erred by failing to find the following impairments as “severe” at step two: bursitis causing hip pain; nodule on lung; post-traumatic stress disorder (PTSD); panic disorder with agoraphobia; anemia; restless leg syndrome interfering with sleep; arthritis, right elbow; and bilateral knee and hip pain.

         The Commissioner argues that Plaintiff's challenge is legally insufficient and therefore constitutes a waiver. In support, the Commissioner cites Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Cir. 2007), which addressed briefing requirements under the Rules of Appellate Procedure, and McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2007), which involved a party raising an issue at oral argument before an appellate panel that she failed to raise in her opening brief. Despite the cases cited by the Commissioner, the Court finds that Plaintiff's allegations sufficiently make a short and plain statement of her claim for relief. Fed.R.Civ.P. 8(a)(2).

         Alternatively, the Commissioner argues that even if Plaintiff raised sufficient step two claims, the ALJ's findings are supported by substantial evidence. Moreover, the Commissioner argues that even if the ALJ erred, the error is harmless because the ALJ accounted for Plaintiff's non-severe conditions in formulating the RFC, and Plaintiff has not demonstrated how finding any of these additional impairments “severe” at step two would have changed the outcome of her case. After a thorough review of the record, the Court agrees that any error was harmless.

         A medically determinable impairment or combination of impairments is considered “severe” at step two if it has lasted or can be expected to last for a continuous period of at least 12 months and significantly limits a claimant's mental or physical ability to perform basic work activities. 20 C.F.R. §§ 416.909, 416.921, 416.922(a). Existence of a medically determinable impairment “must be established by objective medical evidence from an acceptable medical source;” a claimant's statements about symptoms, diagnoses, or opinions are not considered. 20 C.F.R. § 416.921. Basic work activities “mean the abilities and aptitudes necessary to do most jobs, ” such as walking, standing, sitting, pushing, pulling, reaching, carrying, handling, understanding and carrying out simple instructions, dealing with changes in a routine work setting, and responding appropriately to supervision, co-workers, and typical work situations. 20 C.F.R. § 416.922(b). “[A]n impairment(s) is considered “not severe” if it is a slight abnormality(ies) that causes no more than minimal limitation in the individual's ability to function independently, appropriately, and effectively in an age-appropriate manner.” SSR 96-3p 1996 WL 374181.

         Restless Leg Syndrome

         The only evidence of Plaintiff's restless leg syndrome are her own self-reports. Given the absence of any supporting medical evidence of record, the ALJ did not commit error by failing to include the ...


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