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Nagel v. Commissioner of Social Security

United States District Court, D. Oregon

May 7, 2018

ANITA A. NAGEL, Plaintiff,

          OPINION & ORDER

          MICHAEL McSHANE, United States District Judge

         Plaintiff 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 DISMISSED.


         Plaintiff 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 followed.


         A 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).

         The 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.


         The ALJ 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.

         The ALJ 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.

         Plaintiff 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.


         The 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).

         When 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).


         Plaintiff 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 evidence.

         I. Step Two

         Plaintiff 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).

         Step two is merely a threshold determination to screen out weak claims. Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987). ...

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