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Hudson v. Berryhill

United States District Court, D. Oregon

February 28, 2018

NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          Evan D. Marken, Marken Law Group, Nancy Meserow, Law Offices of Nancy J. Meserow, Attorneys for Plaintiff.

          Billy 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.



         Matthew 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.


         The 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).

         Where 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 1226.


         A. Plaintiff's Application

         Plaintiff 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.

         The 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.[1] 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.

         Plaintiff 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.

         B. The Sequential Analysis

         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 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 step four.
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).

         The 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.

         C. The ALJ's Decision

         At step 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[2] 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.

         The ALJ 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.

         Regarding 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.

         At step 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 ...

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