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Menges v. Commissioner Social Security

United States District Court, D. Oregon

April 2, 2018

DIANA S. MENGES, Plaintiff,
v.
Commissioner of Social Security, Defendant,

          FINDINGS AND RECOMMENDATION

          Honorable Paul J. Papak United States Magistrate Judge

         Diana S. Menges ("Plaintiff") seeks judicial review of the Commissioner of Social Security's ("Commissioner") decision denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"). This Court has jurisdiction over Plaintiffs action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). I have considered the parties' briefs and all evidence in the administrative record. For the reasons set forth below, the Commissioner's final decision regarding SSI and DIB should be REVERSED and REMANDED for an award of benefits.

         PROCEDURAL BACKGROUND

         Plaintiff protectively filed an application for DIB and SSI on May 30, 2013, alleging disability beginning November 7, 2011. Plaintiffs date last insured was December 31, 2016. Following a denial of benefits, Plaintiff requested a hearing before an ALJ. On July 1, 2015, ALJ John Michaelsen held a video hearing. Plaintiff was represented by counsel and testified, as did a vocational expert ("VE"), On July 30, 2015, the ALJ issued a decision finding Plaintiff not disabled and the Appeals Council subsequently denied Plaintiffs request for review. Plaintiff appealed the ALJ's decision and this action followed.

         DISABILITY ANALYSIS

         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. YuckerU 482 U.S. 137, 140 (1987); see also 20 C.F.R. §§ 404.1520(a)(4); 416.920(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, the ALJ considers the claimant's work activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i); 416.920(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. §§ 404.1520(a)(4)(i); 416.920(b). Otherwise, the evaluation will proceed 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 140-141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(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); 416.921(a). The ability to perform basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(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 duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c); 416.909. 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 Social Security Ruling ("SSR") 85-28, 1985 SSR LEXIS 19 (1985).

         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); 416.920(a)(4)(iii). 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); 416.920(a)(4)(iii).

         If the claimant's impairments are not equivalent to one of the enumerated impairments, between the third and the fourth steps 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); 416.945(b)-(c). The RFC is an estimate of the claimant's capacity to perform sustained, work-related physical and/or mental activities on a regular and continuing basis, [1] despite the limitations imposed by the claimant's impairments. See 20 C.F.R. § 404.1545(a); see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996).

         At the fourth step of the evaluation process, 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); 416.920(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. §§ 404.1520(a)(4)(iv), 404.1520(f); 416.920(a)(4)(iv). 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 shifts, for the first time, to 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 a person with those characteristics and RFC could 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. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v). If the Commissioner meets her burden to demonstrate the existence in significant numbers in the national economy of jobs capable of being performed by a person with the RFC assessed by the ALJ between the third and fourth steps of the five-step process, the claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R.§§ 404.1520(a)(4)(v), 404, 1520(g), 404.1560(c), 404.1566, 416.960(c). A claimant will be found entitled to benefits if the Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.R, §§ 404.1520(a)(4)(v), 404.1520(g), 416.960(c).

         LEGAL STANDARD

         A reviewing court must affirm an Administrative Law Judge's decision if the ALJ applied proper legal standards and his or her findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 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." 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. (quoting Reddick v. Chafer, 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 Edlundv. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Moreover, the court may not rely upon its own independent findings of fact in determining whether the ALJ's findings are supported by substantial evidence of record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational, Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible [of] 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)).

         When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion, Batson, 359 F.3d at 1198 (citing Andrews v. Shalala, 53 F, 3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, "cannot affirm the Commissioner's decision on a ground that the Administration did not invoke in making its decision." Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

         BACKGROUND

         Plaintiff was 45 years old on her alleged onset date of November 7, 2011. Tr. 34.[2] Plaintiff dropped out of high school in the tenth grade. Tr. 57. Prior to her alleged disability onset date, Plaintiff worked as a house keeper, "material handler, " and caregiver for the elderly. Tr. 244. Plaintiff alleges that she is unable to work due to a learning disability; arthritis in her neck, hands, and knees; depression; congenital hearing loss; diabetes; cholesterol; acid reflux; high blood pressure; and insomnia. Tr, 224, SUMMARY OF ALJ FINDINGS

         At the first step of the five-step sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 7, 2011, the alleged onset date, Tr. 25.

         At the second step, the ALJ found that Plaintiff suffered from the following severe impairments: bilateral sensorineural hearing loss; osteoarthritis; cervical degenerative disc disease; early diabetes mellitus with mild neuropathy; obesity; depression; and "a history of learning disorder." Tr. 25. The ALJ found Plaintiffs hypertension to be a non-severe impairment. Tr. 26.

         At the third step, the ALJ concluded that Plaintiffs impairments do not meet or equal the criteria for any condition in the Listing of Impairments, 20 C.F.R, Pt. 404, Subpt. P, App. 1. Tr 26-28. Because Plaintiff did not establish disability at step three, the ALJ continued to evaluate how Plaintiffs impairments affected her ability to work during the relevant period. The ALJ found Plaintiff had the residual functional capacity ("RFC") to perform light work except she:

can frequently balance, climb or reach overhead, and occasionally grasp, handle and Finger bilaterally. She would also need to avoid concentrated exposure to vibration and temperature extremes, and would need to avoid exposure to loud noise in any work environment. The claimant is also found to be limited to simple, repetitive, routine tasks.

Tr, 28.

         At the fourth step, the ALJ concluded that Plaintiff could not perform her past relevant work, Tr. 33. At step five, the ALJ found Plaintiff could perform jobs existing in significant numbers in the national economy, including dealer account clerk, bakery line worker, and ...


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