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 Erin F. Highland Special
Assistant United States Attorney Office of the General
Counsel Social Security Administration Attorneys for
FINDINGS AND RECOMMENDATION
Jelderks United States Magistrate Judge.
Brenda Lorraine Brown (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). For the reasons that follow, the
Commissioner's decision should be AFFIRMED.
protectively filed her application for SSI on November 20,
2008, alleging disability beginning July 1, 2002. Tr. 871.
The Commissioner denied her application initially and on
reconsideration. Plaintiff appeared at a hearing before an
Administrative Law Judge (ALJ), and appeared at a subsequent
supplemental hearing. Tr. 80. The ALJ issued an unfavorable
decision on June 7, 2011. Tr. 111. Plaintiff appealed, and
the Appeals Council remanded the decision to the ALJ for
further proceedings. Tr. 118. Plaintiff appeared at a hearing
on January 2, 2013, and the ALJ issued an unfavorable
decision on January 23, 2013. Tr. 30, 42. The Appeals Council
denied Plaintiff's request for review, and Plaintiff
appealed the Commissioner's final decision to the
District Court. Tr. 1-3. The District Court reversed and
remanded the case for further consideration. Tr. 1038.
Pursuant to the remand order, the Appeals Council ordered the
ALJ to conduct new physical and mental examinations, and
conduct a hearing. Tr. 1042-45. ALJ Joanne Dantonio held a
hearing on April 18, 2016. Tr. 953. Plaintiff was represented
by counsel and testified. Tr. 953-988. A subsequent hearing
took place on August 10, 2016, before ALJ Joanne Dantonio.
Tr. 898. Plaintiff and Leta Berkshire, a vocational expert
(VE), testified. Tr. 898-952. Plaintiff was represented by
counsel. In a decision dated November 7, 2016, the ALJ found
Plaintiff was not disabled within the meaning of the Act. Tr.
871-885. Plaintiff now timely appeals the Commissioner's
was born in 1971 and was 36 years old on the date she alleges
she became disabled. Tr. 872, 902. She dropped out of school
in tenth grade but earned her GED at the age of 17. Tr. 486.
She has worked as a fundraiser, agricultural sorter,
inventory clerk, quality control technician, potato chip
fryer, and hand packager. Tr. 883.
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.
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 ...