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Bowen v. Commissioner Social Security Administration

United States District Court, D. Oregon

April 19, 2018

LARRY P. BOWEN, Plaintiff,

          MARK MANNING Harder Wells Baron & Manning, Attorney for Plaintiff

          BILLY J. WILLIAMS United States Attorney District of Oregon RENATA GOWIE Assistant United States Attorney

          RYAN TALU Social Security Administration Office of the General Counsel Attorneys for Defendant


          Malcolm F. Marsh United States District Judge

         Plaintiff Larry P. Bowen seeks judicial review of the final decision of the Commissioner of Social Security denying his application for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the Court affirms the Commissioner's decision.


         Plaintiff protectively filed his DIB application on October 10, 2013, alleging disability beginning October 4, 2013, due to obesity, left shoulder impingement/strain status post-surgery; post-traumatic stress disorder ("PTSD"); and degenerative disc disease of the cervical and lumbar spine. Tr. Soc. Sec. Admin. R. ("Tr.") at 53, ECF No. 8. Plaintiffs claim was denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge ("ALJ"). The ALJ held a hearing on October 7, 2015, at which Plaintiff appeared with his attorney and testified. A vocational expert, Francene M. Geers, also appeared at the hearing and testified. On November 9, 2015, the ALJ issued an unfavorable decision. The Appeals Council denied Plaintiffs request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review.

         Plaintiff suffered an on-the-job injury to his left shoulder in March 2012. Tr. 624. Plaintiff experienced pain and swelling, with a suspected rotator cuff tear. Tr. 625. Physical therapy did not improve Plaintiffs condition, and he underwent left shoulder arthroscopy in July 2012. Tr. 625. During surgery, Plaintiff was discovered to have significant fraying at the biceps tendon attachment and tendon tearing, with degenerative changes. Tr. 625. Following surgery, Plaintiff returned to physical therapy and was prescribed narcotic medication for pain. Tr. 625. In September 2012, Plaintiff experienced an abrupt onset of pain and inflammation following an aggressive physical therapy session. Tr. 625. A CT scan showed possible displacement of the bicep tenodesis anchor and a second surgery was recommended. Tr. 626. In March 2013, Plaintiff underwent a second left shoulder arthroscopy. Tr. 626. During surgery, it was discovered the anchor was not displaced, but the tendon was ruptured below the attachment, which was surgically repaired. Tr. 626. In April 2013, Plaintiff returned to physical therapy and was noted to have arthritic shoulder changes and his bicep was believed to be stabilized. Tr. 626. In May 2013, Plaintiff reported significant improvement and was released to return to work with a ten pound restriction on the left. Tr. 626. In June 2013, Plaintiff complained of left arm swelling and inflammation. Tr. 626. In August 2013, Plaintiff was performing light duty desk work, doing home exercises, and taking Cymbalta and Aleve for pain control. Tr. 626.

         Plaintiff was born in 1961, and was 52 years old on the alleged onset of disability date. Plaintiff completed high school and one year of college. Tr. 181. He served in the United States Army from 1978 to 2000, and was honorably discharged. Tr. 162. Plaintiff earned an Oregon State Police Certificate, and has past relevant work as a state trooper, corrections officer, and fish and game warden. Tr. 40, 59, 191.


         The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowenv. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §404.1520. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Valentine v. Commissioner Soc, Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the claimant can do other work that exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).

         The ALJ found that Plaintiff meets the insured status requirements through December 31, 2018. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since October 4, 2013, the alleged onset date. At step two, the ALJ found that Plaintiff has the following severe impairments: left shoulder impingement/strain status post-surgery; PTSD; and degenerative disc disease of the cervical and lumbar spine. Tr. 53. At step three, the ALJ found that Plaintiffs impairments, or combination of impairments, did not meet or medically equal a listed impairment.

         The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perform light work as defined as:

lifting and/or carrying up to twenty pounds occasionally and ten pounds frequently with both arms; pushing/pulling up to ten pounds occasionally and five pounds frequently with the dominant left hand; and sitting, standing, and walking up to six hours each in an eight hour work day. He is further limited to occasional reaching overhead and in all directions with the bilateral upper extremities. He can have occasional exposure to extreme cold and vibrations. [Plaintiff] is able to frequently climb ramps and stairs, but he can occasionally climb ladders, ropes, and scaffolds. He is also able to occasionally stoop, kneel, crouch, and crawl. He can have only occasional public contact.

Tr. 56.

         At step four, the ALJ found that Plaintiff is unable to perform his past relevant work. At step five, the ALJ concluded that considering Plaintiffs age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that he can perform. The ALJ identified such representative occupations as marker, and bakery line worker.

         Accordingly, the ALJ concluded that Plaintiff has not been under a disability under the Social Security Act from October 4, 2013 through the date of the decision.

         TSSUES ...

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