United States District Court, D. Oregon
JACOB H. HARTEL, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
RICHARD F. MCGINTY McGinty & Belcher, Attorneys Attorneys
J. WILLIAMS United States Attorney RENATA GOWIE MICHAEL W.
PILE, RYAN TA LU Attorneys for Defendant
OPINION AND ORDER
J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE.
Jacob H. Hartel seeks judicial review of the final decision
of the Commissioner of the Social Security Administration
(SSA) in which the Commissioner denied Plaintiff's
applications for Disability Insurance Benefits (DIB) under
Title II of the Social Security Act and Supplemental Security
Income (SSI) under Title XVI of the Social Security Act. This
Court has jurisdiction to review the Commissioner's final
decision pursuant to 42 U.S.C. § 405(g).
reasons that follow, the Court AFFIRMS the
decision of the Commissioner and DISMISSES
protectively filed his applications for DIB and SSI benefits
on October 31, 2012. Tr. 14. Plaintiff alleges a disability
onset date of August 15, 2008. Tr. 14. Plaintiff's
applications were denied initially and on reconsideration. An
Administrative Law Judge (ALJ) held a hearing on May 26,
2015. Tr. 14, 34-87. Plaintiff, a vocational expert (VE), and
a medical expert testified. Plaintiff was represented by an
attorney at the hearing. A supplemental hearing was held on
September 4, 2015. Tr. 14, 106-38. Plaintiff was present and
represented by an attorney at the supplemental hearing, and a
medical expert testified.
September 24, 2015, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not
entitled to benefits. Tr. 14-27. On October 18, 2015,
Plaintiff requested review by the Appeals Council. Tr. 10. On
January 26, 2017, the Appeals Council denied Plaintiff's
request to review the ALJ's decision, and the ALJ's
decision became the final decision of the Commissioner. Tr.
1-5. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
March 24, 2017, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner's decision.
was born on May 19, 1982. Tr. 331. Plaintiff was thirty-three
years old at the time of the first hearing. Plaintiff has a
high-school education and one year of college. Tr. 39. The
ALJ found Plaintiff has past relevant work experience as a
fast-food worker, graphic designer, kitchen helper, and
cashier. Tr. 26-27.
alleges disability due to severe neck/shoulder/back spasms,
post-traumatic stress disorder (PTSD), fibromyalgia,
irritable-bowel syndrome (IBS), attention-deficit/
hyperactivity disorder (ADHD), and depression. Tr. 365.
as noted, Plaintiff does not challenge the ALJ's summary
of the medical evidence. After carefully reviewing the
medical records, this Court adopts the ALJ's summary of
the medical evidence. See Tr. 17-26.
initial burden of proof rests on the claimant to establish
disability. Molina v. Astrue, 674 F.3d 1104, 1110
(9th Cir. 2012). To meet this burden, a claimant must
demonstrate his inability “to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A). The ALJ must
develop the record when there is ambiguous evidence or when
the record is inadequate to allow for proper evaluation of
the evidence. McLeod v. Astrue, 640 F.3d 881, 885
(9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459-60 (9th Cir. 2001)).
district 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 as a whole.
42 U.S.C. § 405(g). See also Brewes v. Comm'r of
Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is “relevant evidence that a
reasonable mind might accept as adequate to support a
conclusion.” Molina, 674 F.3d. at
1110-11 (quoting Valentine v. Comm'r Soc. Sec.
Admin., 574 F.3d 685, 690 (9th Cir. 2009)). It is more
than a mere scintilla [of evidence] but less than a
preponderance. Id. (citing Valentine, 574
F.3d at 690).
is responsible for evaluating a claimant's testimony,
resolving conflicts in the medical evidence, and resolving
ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591
(9th Cir. 2009). The court must weigh all of the evidence
whether it supports or detracts from the Commissioner's
decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d
1194, 1198 (9th Cir. 2008). Even when the evidence is
susceptible to more than one rational interpretation, the
court must uphold the Commissioner's findings if they are
supported by inferences reasonably drawn from the record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir.
2012). The court may not substitute its judgment for that of
the Commissioner. Widmark v. Barnhart, 454 F.3d
1063, 1070 (9th Cir. 2006).
The Regulatory Sequential Evaluation
One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity (SGA). 20 C.F.R. §§ 404.1520(a)(4)(I),
416.920(a)(4)(I). See also Keyser v. Comm'r of Soc.
Sec., 648 F.3d 721, 724 (9th Cir. 2011).
Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments. 20 C.F.R.
§§ 404.1509, 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
See also Keyser, 648 F.3d at 724.
Three the claimant is disabled if the Commissioner determines
the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). See
also Keyser, 648 F.3d at 724. The criteria for the
listed impairments, known as Listings, are enumerated in 20
C.F.R. part 404, subpart P, appendix 1 (Listed Impairments).
Commissioner proceeds beyond Step Three, she must assess the
claimant's residual functional capacity (RFC). The
claimant's RFC is an assessment of the sustained,
work-related physical and mental activities the claimant can
still do on a regular and continuing basis despite his
limitations. 20 C.F.R. §§ 404.1520(e), 416.920(e).
See also Social Security Ruling (SSR) 96-8p.
“A ‘regular and continuing basis' means 8
hours a day, for 5 days a week, or an equivalent
schedule.” SSR 96-8p, at *1. In other words, the Social
Security Act does not require complete incapacity to be
disabled. Taylor v. Comm'r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v.
Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
Four the claimant is not disabled if the Commissioner
determines the claimant retains the RFC to perform work he
has done in the past. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). See also
Keyser, 648 F.3d at 724.
Commissioner reaches Step Five, she must determine whether
the claimant is able to do any other work that exists in the
national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). See also Keyser, 648 F.3d at
724-25. Here the burden shifts to the Commissioner to show a
significant number of jobs exist in the national economy that
the claimant can perform. Lockwood v. Comm'r Soc.
Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). The
Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines (or
the grids) set forth in the regulations at 20 C.F.R. part
404, subpart P, appendix 2. If the Commissioner meets this
burden, the claimant is not disabled. 20 C.F.R. §
One the ALJ found Plaintiff has not engaged in substantial
gainful activity since August 15, 2008, Plaintiff's
alleged disability onset date. Tr. 17.
Two the ALJ found Plaintiff has the severe impairments of
musculoskeletal complaints related to the trapezius, left
leg, and low back; fibromyalgia; gastrointestinal issues;
depression; and marijuana use. Tr. 17.
Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one
of the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1. Tr. 18. The ALJ found Plaintiff has the RFC to
perform light work with the following limitations: cannot
climb tall ladders or work near heights; cannot crawl; should
not push or pull objects above the light-exertional level of
twenty pounds; cannot perform intense twisting of the upper
body; cannot perform high-stress work; cannot work in large
groups of people; cannot perform security work; cannot be in
charge of the safety of others; and cannot perform fast-paced
production work. The ALJ found Plaintiff is able to perform
occasional postural movements, to perform occasional overhead
work, to work independently, and to have five or ten minute
interactions with the general public. The ALJ also found
Plaintiff would be off-task for six percent of the workday,
would move at a low to average pace but within the mean
average, and would have to stand and to stretch for one to
three minutes every hour. Tr. 21.
Four the ALJ concluded Plaintiff is able to perform his past
relevant work as a cashier. Tr. 26. Thus, the ALJ concluded
Plaintiff is not disabled and, therefore, is not entitled to
benefits. Tr. 26-27. Accordingly, the ALJ was not required to
proceed to Step Five. 20 C.F.R. § 404.1520(a)(4)(iv).
contends the ALJ erred when he (1) discounted Plaintiff's
subjective symptom testimony, (2) improperly rejected the
lay-witness testimony of Plaintiff's mother, (3)
improperly evaluated the medical evidence of two examining
physicians, and (4) ...