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Farrester v. Berryhill

United States District Court, D. Oregon, Portland Division

March 15, 2018

REGINA DEBRA FARRESTER Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          Ann Aiken United States District Judge

         Plaintiff Regina Debra Farrester brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Acting Commissioner of Social Security ("Commissioner"). The Commissioner found plaintiff not disabled under the Act and denied her application for Disability Insurance Benefits ("DIB"). For the reasons set forth below, the Commissioner's decision is affirmed.

         BACKGROUND

         Plaintiff applied for disability insurance benefits in July 2011, alleging disability since September 2010 due to tumors, high blood pressure, fatigue, cysts, migraines, vision impairment, depression, and anxiety. She suffers from ongoing pain from lipomas and lipoma[1] removal, She has reported problems with labile blood pressure, experiencing blood pressure spikes and drops with "multiple episodes of passing out." Tr. 1290. There is no diagnosed cause of the blood pressure problems, but doctors have suggested it is possibly stress and anxiety related and is "also probably complicated by her alcohol use." Tr. 1369. After an unfavorable first decision by the ALJ and remand by the Appeals Council, plaintiff appeals another unfavorable decision. The Appeals Council denied review of the present decision.

         STANDARDS OF REVIEW

         "An ALJ's disability determination should be upheld unless it contains [harmful] legal error or is not supported by substantial evidence." Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). "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." Id. (quoting Lingenfelier v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)) (internal quotation marks omitted). The record must be evaluated as a whole, and the court must weigh "both the evidence that supports and the evidence that detracts from the Commissioner's conclusion[.]" Id. The court "may not affirm simply by isolating a specific quantum of supporting evidence." Id. If the evidence is subject to more than one interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may not substitute its judgment for that of the Commissioner." Edhtnd v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

         COMMISSIONER'S DECISION

         The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff 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 Secretary has established a five-step sequential evaluation process for determining whether a person is disabled." Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (citing 20 C.F.R. §§ 404.1520, 416.920). At step one, the ALJ found plaintiff has not engaged in "substantial gainful activity" since the alleged disability onset date of September 1, 2010. Tr. 14; 20 C.F.R. §§ 404.1520(a)(4)(f), (b). At step two, the ALJ found that plaintiff had "the following severe impairments: history of lipomas with residual pain, reactive hypertension, anxiety disorder NOS, and alcohol use disorder[, ]" Tr. 14; see also 20 C.F.R. § 404.1520(a)(4)(h). At step three, the ALJ determined plaintiffs impairments, whether considered singly or in combination, did not meet or equal "one of the listed impairments" that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Tr. 14; see also 20 C.F.R. § 404.1520(a)(4)(iii).

         The ALJ found that

including the substance abuse disorder, the claimant has the residual functional capacity [("RFC")] to perform a range of light work as defined in 20 C[.F.R. §] 404.1567(b) except she can perform tasks involving no more than 6 hours of standing/walking, and no more than 6 hours of standing/walking, and no more than 6 hours of sitting in an 8-hour workday (with normal breaks). She can occasionally climb stairs or ramps, but she must avoid climbing ladders, ropes, or scaffolds. She can occasionally balance, stoop, kneel, crouch, or crawl. She is limited to low-stress jobs that avoid assembly line pace. Such jobs may involve few, if any, workplace changes. She can be expected to engage in little, if any, independent decision making in her work duties. She must not be responsible for the safety of others. She must avoid driving. She must avoid even moderate exposure to workplace hazards, such as unprotected heights and moving machinery. She is limited to simple routine work tasks that do not exceed a specific vocational preparation (SVP) level of 2, or a GED reasoning level of 2. Due to the effects of mixed medication and alcohol, the claimant would likely be off-task in even simple work tasks more than 10% of the workday, and will likely miss work several days each month.

Tr. 16 (emphasis added). At step four, the ALJ found that plaintiff could not "perform any past relevant work." Tr. 20; see also 20 C.F.R. § 404.1520(a)(4)(iv). At step five, the ALJ concluded that there were no jobs in the national economy that plaintiff could perform and subsequently found plaintiff disabled. Id. at 20-21; see also 20 C.F.R. § 404.1520(a)(4)(v).

         The ALJ then reevaluated plaintiffs RFC to determine whether plaintiffs drug or alcohol abuse ("DAA") was material to the disability determination. The ALJ decided that, if DA A were not an issue, plaintiffs residual functional capacity ("RFC") would remain the same except that she would no longer miss several days of work each month or be off-task more than ten percent of time. Tr. 21. With those limitations eliminated, the ALJ found that "there would be a significant number of jobs in the national economy that the claimant could perform[, ]" including soft goods sorter, clerical checker, and folder. Tr. 23. Finally, the ...


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