United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
Honorable Paul Papak, United States Magistrate Judge.
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.
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).
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
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).
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).
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.
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.
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).
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)).
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.
1957, Gregory was 56 years old on the alleged disability
onset date, and 59 years old at the time of the hearing. Tr.
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.
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.
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.
OF THE ALJ FINDINGS
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.
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.
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.
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 ...