United States District Court, D. Oregon
Merrill Schneider Schneider Kerr & Robichaux Attorney for
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
OPINION AND ORDER
Jelderks United States Magistrate Judge.
Alisia Isabella Montavono (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.
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.
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.
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).
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).
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).
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).
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).
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. §
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.
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.
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.
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.
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.
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.
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
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
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.
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.
Step Two Determinations
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.
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).
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.
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.
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 ...