United States District Court, D. Oregon
ANITA A. NAGEL, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION & ORDER
MICHAEL McSHANE, United States District Judge
Anita Ann Nagel seeks judicial review of the final decision
of the Commissioner of Social Security
(“Commissioner”) denying disability and
disability insurance benefits pursuant to Title II and
supplemental security income pursuant to Title XVI of the
Social Security Act. For the reasons set forth below, the
decision of the Commissioner is AFFIRMED and this case is
filed a Title II application for a period of disability and
disability insurance benefits on July 23, 2013, and a Title
XVI application for supplemental security income on July 9,
2013. Tr. 13. Plaintiff alleged disability beginning July 9,
2011. Id. Her applications were denied. Id.
Plaintiff appeared by video conference before an
Administrative Law Judge (“ALJ”) at a hearing
held May 7, 2015. Id. On July 23, 2015, the ALJ
issued a decision finding Plaintiff not disabled. Tr. 24. The
Appeals Council denied review, making the ALJ's decision
the final decision of the Commissioner. Tr. 1. This appeal
claimant is disabled if he or she is unable 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). “Social Security Regulations set out a
five-step sequential process for determining whether an
applicant is disabled within the meaning of the Social
Security Act.” Keyser v. Comm'r, 648 F.3d
721, 724 (9th Cir. 2011).
The five-steps are: (1) Is the claimant presently working in
a substantially gainful activity? (2) Is the claimant's
impairment severe? (3) Does the impairment meet or equal one
of a list of specific impairments described in the
regulations? (4) Is the claimant able to perform any work
that he or she has done in the past? and (5) Are there
significant numbers of jobs in the national economy that the
claimant can perform?
Id. at 724-25; see also Bustamante v.
Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Bustamante, 262 F.3d at 953. The Commissioner bears
the burden of proof at step five. Id. at 953-54. At
step five, the Commissioner must show that the claimant can
perform other work that exists in significant numbers in the
national economy, “taking into consideration the
claimant's residual functional capacity, age, education,
and work experience.” Tackett v. Apfel, 180
F.3d 1094, 1100 (9th Cir. 1999); see also 20 C.F.R.
§§ 404.1566; 416.966 (describing “work which
exists in the national economy”). If the Commissioner
fails to meet this burden, the claimant is disabled. 20
C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If,
however, the Commissioner proves that the claimant is able to
perform other work existing in significant numbers in the
national economy, the claimant is not disabled.
Bustamante, 262 F.3d at 953-54.
performed the sequential analysis. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date of July 9, 2011. Tr.
15. The ALJ determined that Plaintiff had the following
severe impairments: obesity, lumbar degenerative disc
disease, and bilateral knee osteoarthritis. Tr. 16. The ALJ
determined that Plaintiff's severe impairment did not
meet or equal a listed impairment. Tr. 18.
determined that Plaintiff had the RFC to perform sedentary
work with the following additional limitations: she is
limited to frequent balancing, occasional crawling,
crouching, stooping, and climbing of ramps and stairs; she
cannot kneel or climb ladders, ropes, and scaffolds; she
should avoid concentrated exposure to vibration; and she
should avoid all exposure to heights, moving machinery, and
similar hazards. Tr. 19.
has a limited education and is able to communicate in
English. Tr. 23. The ALJ found that Plaintiff was unable to
perform any of her past relevant work. Tr. 22. Based on her
RFC, the ALJ determined that Plaintiff was able to perform
work as a charge account clerk, a document preparer, or a
table worker. Tr. 23-24. Accordingly, the ALJ determined that
Plaintiff was not disabled. Tr. 24.
district court must affirm the Commissioner's decision if
the decision is based on proper legal standards and the legal
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm'r, 359
F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence
“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 quotation marks omitted). In reviewing
the Commissioner's alleged errors, this court must weigh
“both the evidence that supports and detracts from the
[Commissioner's] conclusion.” 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.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
the evidence before the ALJ is subject to more than one
rational interpretation, courts 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 agency did
not invoke in making its decision. Stout v.
Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006).
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).
alleges the ALJ erred by (1) failing to find a severe
shoulder impairments at step two of the analysis; (2) failing
to make equivalency findings at step three of the analysis;
(3) improperly rejecting Plaintiff's subjective symptom
testimony; and (4) improperly weighing the medical opinion
asserts the ALJ erred by finding Plaintiff's shoulder
impairments non-severe at step two of the sequential
analysis. At step two, the ALJ must determine if an
impairment is “severe.” 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is not
severe if the evidence establishes only a slight abnormality
that has no more than a minimal effect on an individual's
ability to do work. Smolen v. Chater, 80 F.3d 1273,
1290 (9th Cir. 1996).
two is merely a threshold determination to screen out weak
claims. Bowen v. Yuckert, 482 U.S. 137, 146-47