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Phillips v. Berryhill

United States District Court, D. Oregon

March 15, 2018

DEREK JON PHILLIPS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security. Defendant.

          FINDINGS AND RECOMMENDATION

          Mark D. Clarke United States Magistrate Judge.

         Plaintiff Derek Phillips brings this action for judicial review of the final decision of the Commissioner of Social Security ("Commissioner'") denying his application for Title 11 Disability Insurance Benefits under the Social Security Act. For the reasons set forth below, the Commissioner's decision should be affirmed.

         PROCEDURAL BACKGROUND

         On November 7, 2012, plaintiff applied for Disability Insurance Benefits, alleging disability as of April 19, 2000.[1] Tr. 40, 165-71.[2] His application was denied initially and upon reconsideration. Tr. 104-08, 112-14. On February 12, 2015, a hearing was held before an Administrative Law Judge (''ALJ"), wherein plaintiff was represented by counsel and testified. as did a vocational expert ("VE"). Tr. 58-83. On March 27, 2015, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Social Security Act. Tr. 40-53. After the Appeals Council denied his request for review, plaintiff filed a complaint in this Court. Tr. 1-6.

         STATEMENT OF FACTS

         Born on December 1, 1966, plaintiff was 33 years old on the alleged onset date and 48 years old at the time of the hearing. Tr. 165. He obtained undergraduate and law degrees over the course of several years. Tr. 62, 190. Plaintiff worked previously as a dining room attendant, informal waiter, and kitchen helper. Tr. 79. Plaintiff alleges disability due to depression, anxiety. post-traumatic stress disorder (''PTSD"), and back and knee pain. Tr. 67, 189.

         STANDARD OF REVIEW

         The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is ''more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389. 401 (1971) (citation and internal quotations omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnharl. 400 F.3d 676, 679 (9th Cir. 2005).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the 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 person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520. 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled.

         At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment, he is not disabled.

         At step three, the Commissioner determines whether the claimant's impairments, either singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert. 482 U.S. at 140-41; 20 C.F.R. § 404.1520(d). If so, the claimant is presumptively disabled; if not. the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. § 404.1520(f). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566.

         THE ALJ'S FINDINGS

         At step one of the five step sequential evaluation process outlined above, the ALJ found plaintiff "did not engage in substantial gainful activity during the period from his alleged onset date of April 19, 2000 through his date last insured of June 30, 2001." Tr. 42. At step two, the ALJ determined the following impairments were medically determinable and severe through the date last insured: depression, PTSD, and "torn ACL with surgical repair." Id. At step three, the ALJ found that plaintiffs impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 43.

         Because he did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiffs impairments affected his ability to work. The ALJ resolved that plaintiff had the residual functional capacity ("RFC") to perform a limited range of light work prior to the date last insured: "He could occasionally climb; he was limited to performing simple, entry level work; he should not have had transactional dealings with the public; and he could have occasional interaction with co-workers but no team activities." Tr. 44.

         At step four, the ALJ determined plaintiff could not perform any past relevant work. Tr. 51. At step five, the ALJ concluded, based on the VE's testimony, that there were a significant number of jobs in the national economy that plaintiff could perform ...


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