United States District Court, D. Oregon
D. Marken, Marken Law Group, Nancy Meserow, Law Offices of
Nancy J. Meserow, Attorneys for Plaintiff.
J. Williams, United States Attorney, and Renata Gowie,
Assistant United States Attorney, Kathryn A. Miller, Special
Assistant United States Attorney, Office of General Counsel,
Of Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE.
Dean Hudson seeks judicial review of the final decision of
the Commissioner of the Social Security Administration
(“Commissioner”) denying Plaintiff's
application for disability insurance benefits
(“DIB”) under Title II of the Social Security
Act. For the following reasons, the Commissioner's
decision is affirmed.
district court must affirm the Commissioner's decision if
it is based on the proper legal standards and the findings
are supported by substantial evidence. 42 U.S.C. §
405(g); see also Hammock v. Bowen, 879 F.2d 498, 501
(9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a
preponderance.” Bray v. Comm'r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). It means “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. (quoting Andrews, 53
F.3d at 1039).
the evidence is susceptible to more than one rational
interpretation, the Commissioner's conclusion must be
upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are
insignificant if the Commissioner's interpretation is a
rational reading of the record, and this Court may not
substitute its judgment for that of the Commissioner. See
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190,
1193, 1196 (9th Cir. 2004). “[A] reviewing court must
consider the entire record as a whole and may not affirm
simply by isolating a specific quantum of supporting
evidence.” Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007) (quoting Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation
marks omitted)). A reviewing court, however, may not affirm
the Commissioner on a ground upon which the Commissioner did
not rely. Id.; see also Bray, 554 F.3d at
was born on March 20, 1986, and was twenty-eight years old as
of his alleged disability onset date. Administrative Record
(“AR”) 144. Plaintiff is a veteran of the United
States Army. Plaintiff's service began in January 2012,
and he served as a combat medic. Plaintiff was honorably
discharged in May 2014. AR 60. Plaintiff graduated with a
Bachelor's degree from Eastern Oregon University in 2008,
and before his service in the Army, Plaintiff worked as a
waiter at Denny's and in the apparel department at Fred
Meyer. AR 60. Plaintiff filed an application for DIB on
November 18, 2014. AR 144-46. Plaintiff alleges that his
disability began on May 28, 2014, due to bilateral
patellofemoral syndrome, bilateral medial collateral ligament
sprains, bilateral chondromalacia patella, lumbar strain,
left elbow medial epicondylitis, bilateral tendonitis in the
hands, bilateral Achilles tendonitis, depression, and
anxiety. AR 146.
Commissioner denied Plaintiff's application initially on
March 2, 2015, and again on reconsideration on June 23, 2015.
AR 99, 143. Plaintiff then requested a hearing before an
Administrative Law Judge (“ALJ”). AR 161-62. An
initial hearing was scheduled for November 2, 2015, but that
hearing was postponed because the medical expert had not
received the full record and was not prepared to testify. AR
83-87. The hearing was rescheduled for February 29, 2016. At
that hearing, the ALJ heard testimony from medical expert Dr.
Robert John McDevitt and briefly from Plaintiff, but the
hearing ended abruptly after the ALJ learned that Plaintiff
was under the influence of marijuana. AR 53-54. The hearing was
reset for July 11, 2016. On that date, the ALJ heard
testimony from Plaintiff and vocational expert
(“VE”) Richard Hengst. AR 57-80. After
considering the testimony and the evidence in the record, the
ALJ determined that Plaintiff is not disabled. See
generally AR 15-32.
petitioned the Appeals Council for review of the ALJ's
decision. AR 14. The Appeals Council denied Plaintiff's
request on November 15, 2016 (AR 1-3), rendering the
ALJ's decision the final decision of the Commissioner.
Plaintiff seeks review of the ALJ's decision.
The Sequential Analysis
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 12 months[.]” 42 U.S.C. §
423(d)(1)(A). “Social Security Regulations set out a
five-step sequential process for determining whether an
applicant is disabled within the meaning of the Social
Security Act.” Keyser v. Comm'r Soc. Sec.
Admin., 648 F.3d 721, 724 (9th Cir. 2011); see
also 20 C.F.R. §§ 404.1520 (DIB), 416.920
(SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
Each step is potentially dispositive. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1. Is the claimant performing “substantial gainful
activity?” 20 C.F.R. §§ 404.1520(a)(4)(i),
416.920(a)(4)(i). This activity is work involving significant
mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the
claimant is performing such work, she is not disabled within
the meaning of the Act. 20 C.F.R. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not
performing substantial gainful activity, the analysis
proceeds to step two.
2. Is the claimant's impairment “severe”
under the Commissioner's regulations? 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is
“severe” if it significantly limits the
claimant's physical or mental ability to do basic work
activities. 20 C.F.R. §§ 404.1521(a), 416.921(a).
Unless expected to result in death, this impairment must have
lasted or be expected to last for a continuous period of at
least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If
the claimant does not have a severe impairment, the analysis
ends. 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). If the claimant has a severe impairment,
the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or
equal” one or more of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1? If so, then the
claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment
does not meet or equal one or more of the listed impairments,
the analysis continues. At that point, the ALJ must evaluate
medical and other relevant evidence to assess and determine
the claimant's “residual functional capacity”
(“RFC”). This is an assessment of work-related
activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his
or her impairments. 20 C.F.R. §§ 404.1520(e),
404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ
determines the claimant's RFC, the analysis proceeds to
4. Can the claimant perform his or her “past relevant
work” with this RFC assessment? If so, then the
claimant is not disabled. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot
perform his or her past relevant work, the analysis proceeds
to step five.
5. Considering the claimant's RFC and age, education, and
work experience, is the claimant able to make an adjustment
to other work that exists in significant numbers in the
national economy? If so, then the claimant is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such
work, he or she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954
(9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Id. at 953; see also Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999);
Yuckert, 482 U.S. at 140-41. The Commissioner bears
the burden of proof at step five. Tackett, 180 F.3d
at 1100. At step five, the Commissioner must show that the
claimant can perform other work that exists in significant
numbers in the national economy, “taking into
consideration the claimant's residual functional
capacity, age, education, and work experience.”
Id.; see also 20 C.F.R. §§
404.1566, 416.966 (describing “work which exists in the
national economy”). If the Commissioner fails to meet
this burden, the claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform
other work existing in significant numbers in the national
economy, the claimant is not disabled. Bustamante,
262 F.3d at 953-54; Tackett, 180 F.3d at 1099.
The ALJ's Decision
one, the ALJ found that Plaintiff has not engaged in
substantial gainful activity since May 28, 2014, the alleged
onset date. AR 20. At step two, the ALJ found that Plaintiff
has the following severe impairments: “low back strain,
bilateral knee medial collateral ligament strains, right knee
chondromalacia of the patella, depressive/affective disorder
and anxiety/panic disorder.” Id. The ALJ also
found that Plaintiff suffers from marijuana abuse and chest
pain, but that these two impairments do not rise to the level
of being severe impairments. Regarding the marijuana abuse,
the ALJ found that Plaintiff acknowledged near-daily use
since his alleged onset date, and that Plaintiff now has a
state-issued medical marijuana card. See AR 1660-63.
Regarding Plaintiff's chest pain, the ALJ noted
Plaintiff's history of Wolff-Parkinsons-White
(“WPW”) Syndrome but pointed out that Plaintiff
underwent an electrocardiogram (“ECG”), a cardiac
consultation, a holter monitor, and an echocardiogram
(see AR 1975-80), and that this testing revealed
that Plaintiff's chest pain was not related to an
arrhythmia or other cardiac cause. AR 21. At step three, the
ALJ concluded that Plaintiff did not have an impairment or
combination of impairments that met or equaled one of the
listed impairments in the regulations.
next assessed Plaintiff's RFC. The ALJ determined that
Plaintiff has the capacity to perform light work as defined
in 20 C.F.R. § 404.1567(b), but with certain
limitations. Specifically, the ALJ found that Plaintiff was
limited in the following ways:
He can lift and carry up to 20 pounds occasionally and ten
pounds frequently. He can stand and walk two out of eight
hours and sit for six out of eight hours. He can never climb
ladders, ropes or scaffolds. He can occasionally climb ramps
or stairs, balance, stoop, kneel, crouch and crawl. He should
avoid heights, hazards and heavy equipment. He needs a cane
to ambulate over uneven or rough surfaces. He can perform
jobs consistent with specific vocational preparation ratings
of 1 or 2. He can also have no public contact.
AR 23. In formulating the RFC, the ALJ considered
Plaintiff's testimony and the medical opinions of
treating physicians Drs. Michael Yao and David Dodge,
examining physician Dr. March Dillon, State agency medical
consultants Drs. Richard Alley and Thomas Davenport, and
medical expert Dr. Robert John McDevitt. AR 28-30.
Plaintiff's testimony, the ALJ found that Plaintiff's
“statements concerning the intensity, persistence and
limiting effects of [his] symptoms are not entirely
consistent with the medical evidence and other evidence in
the record.” AR 24. The ALJ gave Dr. Yao's opinion
“partial weight” because the ALJ believed that
Dr. Yao's report of the severity of Plaintiff's
symptoms was not supported by the medical record. The ALJ
gave Dr. Dillon's opinion “some weight”
because the ALJ did not find any corroboration for Dr.
Dillon's assertion that Plaintiff required a heightened
level of supervision in a workplace setting. AR 28. The ALJ
gave Dr. Dodge's opinion “little weight”
because Plaintiff stated he had only seen Dr. Dodge once to
acquire a medical marijuana card, and Plaintiff's
marijuana use was against the advice of Plaintiff's other
treating doctors. As for the opinions of the State agency
consultants, the ALJ generally gave Dr. Alley and Dr.
Davenport's opinions “significant to great weight,
” however, the ALJ gave limited weight to the portion
of their opinions concerning Plaintiff's mental
impairments because evidence submitted after their opinions
were issued contradicted their assessments that
Plaintiff's mental impairments were nonsevere. AR 28-30.
The ALJ gave Dr. McDevitt's opinion “significant
weight, ” noting that Dr. McDevitt “is the only
medical professional who appears to have reviewed the entire
record.” AR 30.
four, the ALJ determined that Plaintiff had previously worked
as a waiter and in retail sales, and that Plaintiff was
unable to perform any past relevant work. AR 30. At step
five, the ALJ considered the testimony of the VE and found
that Plaintiff could perform jobs that exist in significant
numbers in the national economy. AR 31. Those jobs included
electronics worker, hand ...