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Peterson v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

May 9, 2018

MARK ALLEN PETERSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, [1] Defendant.

          OPINION AND ORDER

          Youlee Yim You United States Magistrate Judge.

         Plaintiff, Mark Peterson (“Peterson”), seeks judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying his application for Title II Disability Insurance Benefits (“DIB”) and Title XVI Social Security Income (“SSI”) under the Social Security Act (“Act”). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c). ECF #4. For the reasons set forth below, the Commissioner's decision is REVERSED and this case is REMANDED for further proceedings.

         BACKGROUND

         Born in February, 1962, Peterson was 47 years old on the alleged onset date. Tr. 105, 282.[2] Peterson graduated high school and has not completed any post-secondary coursework. Tr. 369. He has past work experience as a truck driver, cannery worker, and fish filleter. Tr. 23.

         PROCEDURAL HISTORY

         Peterson initially filed applications for SSI and DIB on October 25, 2010. Tr. 87. He alleged disability beginning July 3, 2009. Id. His applications were denied initially and upon reconsideration. Id. On May 16, 2012, a hearing was held before an Administrative Law Judge (“ALJ”), wherein Peterson was represented by counsel and testified, as did a vocational expert (“VE”). Tr. 31-50. On May 22, 2012, the ALJ issued a decision finding Peterson not disabled within the meaning of the Act. Tr. 87-100. Peterson did not appeal this decision.

         On August 1, 2012, Peterson filed new applications for SSI and DIB. Tr. 259, 265. Peterson again alleged disability beginning July 3, 2009, due to scoliosis, angina, anxiety, and depression. Tr. 105. His applications were denied initially and on reconsideration. Tr. 13, 181-88, 190-94. On March 5, 2015, a second hearing was held, and on March 27, 2015, a second ALJ issued a decision finding Peterson not disabled. Tr. 13-25, 53-83. After the Appeals Council denied his request for review, Peterson filed a complaint in this court. Tr. 1-6. The ALJ's March 27, 2015 decision is therefore the Commissioner's final decision subject to review by this court. 20 C.F.R. § 422.210.

         STANDARD OF REVIEW

         The reviewing 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. 42 U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and “‘may not affirm simply by isolating a specific quantum of supporting evidence.'” Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The reviewing court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is “supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.

         SEQUENTIAL ANALYSIS AND ALJ FINDINGS

         Disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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 engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. This sequential analysis is set forth in the Social Security regulations, 20 C.F.R. §§ 404.1520, 416.920, in Ninth Circuit case law, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)), and in the ALJ's decision in this case, Tr. 14-15.

         At step one, the ALJ found that Peterson had not engaged in substantial gainful activity after the alleged onset date. Tr. 16.

         At step two, the ALJ found that Peterson has the following severe impairments: coronary artery disease, scoliosis, mild degenerative disc disease, and anxiety disorder. Id.

         At step three, the ALJ found Peterson did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Id. The ALJ next assessed Peterson's residual functional capacity (“RFC”) and determined that he could perform light work with the following exceptions: he is limited to four hours standing and walking in an eight-hour workday; he can occasionally climb ladders, ropes, scaffolds, ramps, and stairs; he can occasionally stoop, kneel, crouch, and crawl; he should avoid concentrated exposure to vibrations and hazards; he is limited to occasional superficial contact with the public and coworkers; and he is limited to simple, routine, and repetitive tasks consistent with unskilled work. Tr. 18.

         At step four, the ALJ found Peterson could not perform any of his past relevant work. Tr. 23. At step five, the ALJ determined Peterson could perform jobs that exist in significant numbers in the national economy, including small parts assembler and production assembler. Tr. 24.

         DISCUSSION

         Peterson argues that the ALJ erred by: (1) improperly discounting his subjective symptom testimony; (2) improperly rejecting the medical opinion of the consultative examining psychologist, Daniel Scharf, Ph.D. (“Dr. Scharf”); and (3) erroneously concluding that he was capable of light work rather than sedentary work.

         I. Preclusive Effect of Prior Administrative Decision

         As a preliminary matter, this court addresses the issue of res judicata. Peterson applied for disability in 2010, and after an administrative hearing, the ALJ found he was not disabled for the period of July 3, 2009, through May 22, 2012. Tr. 87-100. Peterson did not appeal the previous ALJ decision, and it became administratively final. Tr. 13. In the current case, Peterson again alleges disability beginning July 3, 2009. Tr. 105. The principles of res judicata apply to administrative decisions. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). Although procedural mechanisms exist for reopening final ALJ decisions, Peterson has not argued that the 2012 decision should be reopened. 20 C.F.R. §§ 404.988, 416.1488. Accordingly, the 2012 decision stands.

         Furthermore, the previous ALJ decision creates a presumption of continuing non-disability and in order to overcome that presumption, the claimant “must prove ‘changed circumstances' indicating a greater disability.” Chavez, 844 F.2d at 693 (citing Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985)). Here, the ALJ found that Peterson's impairments have increased in severity since that time. Defendant's Brief, ECF #21, 2 (citing Tr. 13). Therefore, the court evaluates whether Peterson was disabled beginning May 23, 2012.

         II. Subjective Symptom Testimony

         Peterson alleges that the ALJ wrongfully discounted his subjective symptom testimony. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the “ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).

         A. Activities ...


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