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Gregory v. Berryhill

United States District Court, D. Oregon

March 12, 2018

DANIEL GENE GREGORY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS AND RECOMMENDATION

          Honorable Paul Papak, United States Magistrate Judge.

         Plaintiff Daniel Gregory ("Gregory") filed this action on January 30, 2017, seeking judicial review of the Commissioner of Social Security's final decision denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act"). This court has jurisdiction over plaintiffs action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The Court has considered all of the parties' briefs and all of the evidence in the administrative record. For the reasons set forth below, the Commissioner's final decision should be AFFIRMED.

         DISABILITY ANALYSIS FRAMEWORK

         To establish disability within the meaning of the Act, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Commissioner has established a five-step sequential process for determining whether a claimant has made the requisite demonstration. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. § 404.1520(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

         At the first step, an Administrative Law Judge ("ALJ") considers the claimant's work activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. § 4041520(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 4041520(a)(4)(i), 404.1520(b). Otherwise, the evaluation proceeds to the second step.

         At the second step, the ALJ considers the medical severity of the claimant's impairments. See Bowen, 482 U.S. at 140-41; see also 20 C.F.R. § 4041520(a)(4)(ii). An impairment is "severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 20 C.F.R. § 404.1520(c). The ability to perform basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C, F, R. § 404.1522(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or do not meet the durational requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 4041520(a)(4)(ii), 404.1520(c). Nevertheless, it is well established that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen, 482 U.S. at 153-54). "An impairment or combination of impairments can be found 'not severe' only if the evidence establishes a slight abnormality that has 'no more than a minimal effect on an individual's ability to work.'" Id. (quoting SSR 85-28, 1985 WL 56856, at *3).

         If the claimant's impairments are severe, the evaluation will proceed to the third step, at which the ALJ determines whether the claimant's impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d). If the claimant's impairments are equivalent to one of the impairments enumerated in 20 C.F.R. § 404, Subpt. P, App. 1, the claimant will conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d).

         If the claimant's impairments are not equivalent to one of the enumerated impairments, the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all the relevant medical and other evidence in the claimant's case record. See 20 C.F.R. § 404.1520(e). The RFC is an estimate of the claimant's capacity to perform sustained, work-related, physical and mental activities on a regular and continuing basis, despite the limitations imposed by the claimant's impairments. See 20 C.F.R. § 404.1545(a). "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8p 1996 WL 374184, at *1.

         At the fourth step, the ALJ considers the RFC in relation to the claimant's past relevant work. See Bowen, 482 U, S. at 141; see also 20 C.F.R. § 404, 1520(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 4041520(a)(4)(iv), 404.1520(f). In the event the claimant is no longer capable of performing his or her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden of proof is, for the first time, on the Commissioner.

         At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's age, education, and work experience to determine whether the claimant can perform any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 4041520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566. If the Commissioner meets her burden to demonstrate that the claimant is capable of performing jobs existing in significant numbers in the national economy, the claimant is conclusively found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 4041520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566. A claimant will be found entitled to benefits if the Commissioner fails to meet her burden at the fifth step. See id, ; see also 20 C.F.R. §§ 4041520(a)(4)(v), 404.1520(g).

         LEGAL STANDARD

         A reviewing court must affirm an ALJ's decision if the ALJ applied the proper legal standards and her findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). '"Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

         The court must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The court may not substitute its judgment for that of the Commissioner. See Id. (citing Robbins, 466 F.3d at 882); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible [ofj more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984)).

         BACKGROUND

         Born in 1957, Gregory was 56 years old on the alleged disability onset date, and 59 years old at the time of the hearing. Tr. 261.[1] He completed high school and two years of college. Tr. 285. On March 10, 2015, Gregory applied for DIB, alleging a disability onset date of March 1, 2013. Tr. 261. He had past relevant work experience as a collections clerk and credit clerk. Tr. 65, 285. He alleged disability due to post-traumatic stress disorder ("PTSD"), bilateral carpal tunnel syndrome, anxiety, depression, chronic migraines, diabetes, right shoulder injury, and Klinefelter's syndrome. Tr. 366.

         Gregory's application for DIB was denied initially and on reconsideration, and on February 9, 2016, he requested a hearing before an ALJ, Tr. 136, 153, 206. On June 21, 2016, a hearing was conducted before ALJ B. Hobbs, at which Gregory, his counsel, and Mark McGowan, a Vocational Expert ("VE"), were present. Id.

         On July 28, 2016, the ALJ denied Gregory's application for DIB. Tr. 28. Gregory timely requested review of the ALJ's decision, Tr. 12, and the Appeals Council denied his request on December 2, 2016, Tr. 1-8. Consequently, the ALJ's decision of July 28, 2016, became the Administration's final order for purposes of judicial review. See 20 C.F.R, § 422.210(a); see also, Sims v. Apfel, 530 U.S. 103, 107 (2000). This action followed.

         SUMMARY OF THE ALJ FINDINGS

         At the first step of the five-step sequential evaluation process, the ALJ found Gregory did not engage in substantial gainful activity during the period from the alleged onset date of March 1, 2013, through the date of the hearing. Tr. 18.

         At the second step, the ALJ found Gregory had the following severe impairments: depressive disorder; generalized anxiety disorder; panic disorder, without agoraphobia; cognitive disorder, not otherwise specified; and PTSD. Id. The ALJ found the following impairments non-severe: right shoulder disorder, migraine headaches, obesity, carpal tunnel syndrome, and type-II diabetes. Tr. 19. Additionally, the ALJ found Klinefelter's syndrome was not a medically determinable impairment because there was no evidence of a diagnosis in the record. Tr. 20.

         At the third step, the ALJ found that none of Gregory's impairments were the equivalent of any of the impairments enumerated in 20 C.F.R. § 404, Subpt P, App. 1. Tr. 22. The ALJ therefore conducted an assessment of Gregory's RFC. Specifically, the ALJ found Gregory had the RFC to perform a full range of work at all exertional levels, with the following additional limitations:

[D]ue to pain, side effects of medications, and his mental impairments, the claimant is limited to understanding, remembering, and carrying out only short and simple instructions and he can make only simple, work-related judgments and decisions. In addition, the claimant can have no more than frequent (sic) proximity contact with the public, co-workers, and supervisors.

         Tr. 22. In reaching this finding, the ALJ stated that he considered all symptoms and the extent to which those symptoms could reasonably be accepted as consistent with the objective medical evidence and other ...


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