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Drake v. Berryhill

United States District Court, D. Oregon, Portland Division

March 2, 2018

RACHEL EULA DRAKE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          ROBERT E. JONES SENIOR JUDGE

         Plaintiff Rachel Drake appeals the Commissioner's decision denying her application for disability insurance benefits under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C, § 405(g). I AFFIRM the Commissioner's decision.

         PRIOR PROCEEDINGS

         Drake filed a previous claim alleging disability due to trochanteric bursitis, migraines, back strain, left shoulder pain, and left wrist pain. Admin R. 76. In a decision dated October 6, 2011, the Commissioner determined that Drake was not disabled up to and including that date. Admin. R. 68-80. In her present claim, Drake alleges disability due to the combined effects of fibromyalgia, migraines, arthritis in the wrist, tendinitis in the left shoulder, bursitis in the right hip, rapid heart rate, depression, and anxiety. Admin. R. 215. Drake's insured status under the Social Security Act expired on September 30, 2013. Admin. R. 11. She must establish that she became disabled on or before that date to prevail on her claim. 42 U.S.C. § 423(a)(1)(A). Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). Accordingly, the relevant period for her present claim runs from October 6, 2011, through September 30, 2013.

         The ALJ applied the five-step disability determination process described in 20 C.F.R. § 404.1520. See Bowenv. Yuckert, 482 U.S. 137, 140(1987). Admin. R. 14-21. The ALJ found that, during the relevant period, Drake's ability to perform basic work activities was limited by fibromyalgia, osteoarthritis of the left wrist, trochanteric bursitis, depressive disorder, and somatic symptom disorder. Admin. R. 14. He found that, despite these impairments, Drake retained the residual functional capacity ("RFC") to perform sedentaiy work with limited climbing, pushing and pulling, reaching, handling, fingering, and postural activities such as kneeling, crouching and so forth. The ALJ also found that Drake required certain environmental limitations and could only perform simple, routine, repetitive tasks consistent with unskilled work. Admin. R. 15-16.

         The vocational expert ("VE") testified that a person with Drake's vocational factors and RFC could perform the activities required for a number of sedentary, entry level occupations, such as document preparer, telephone information clerk, and addressor clerk, which together represent over two hundred thousand jobs in the national economy. Admin. R. 20, 54-55, 63. The ALJ concluded that Drake had failed to show that she was disabled within the meaning of the Social Security Act during the period that is relevant for her claim. Admin. R. 21.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings of fact are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence may be less than a preponderance; it is such relevant evidence that a reasonable person might accept as adequate to support a conclusion. Robbins v. Soc. Sec. Admin., 466 F.3d 880 (9th Cir. 2006). The Commissioner's factual findings must be upheld if supported by inferences reasonably drawn from the record, even if evidence exists to support another rational interpretation. Batson, 359 F.3d at 1193; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

         ASSIGNMENTS OF ERROR

         The plaintiff bears the burden of showing that the ALJ erred and that any error was harmful. McLeod v. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011). Drake contends the ALJ failed to properly identify her severe impairments, improperly determined that her impairments did not equal a presumptively disabling condition listed in the regulations, and failed to accurately assess her RFC by improperly discounting her subjective allegations, the opinion of John Benson, Psy.D., and the lay witness statement of Nancy Drake. Drake also challenges the VE's testimony.

         DISCUSSION

         I. Severity Requirement

         Drake contends the ALJ failed to properly identify her severe impairments at step two of the disability determination process. Step two of the disability determination process is a de minimus severity requirement. For a claim to proceed beyond step two, a claimant must show that she has some impairment that has more than a minimal adverse impact on her ability to perform basic work activities. Here, the ALJ resolved step two in Drake's favor and continued to the remaining steps of the regulatory process. Accordingly, Drake has not alleged a harmful error at step two. Buck v. Berryhill, 869 F.3d 1040, 1048-1049 (9th Cir. 2017).

         II. Listing ...


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