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Dagni M. v. Commissioner of Social Security

United States District Court, D. Oregon

August 29, 2018

DAGNI M.[1] Plaintiff,

          Tim Wilborn WILBORN LAW OFFICE, P.C. Attorney for Plaintiff

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon Renata Gowie ASSISTANT UNITED STATES ATTORNEY

          Lisa Goldoftas SPECIAL ASSISTANT UNITED STATES ATTORNEY Attorneys for Defendant

          OPINION & ORDER


         Plaintiff Dagni M. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB) and supplemental security income (SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I affirm the Commissioner's decision in part, reverse it in part, and remand for additional proceedings.


         Plaintiff applied for DIB and SSI on May 13, 2013, alleging an onset date of July 1, 2011. Tr. 199-205 (DIB App.), Tr. 206-13 (SSI App.). Her applications were denied initially and on reconsideration. Tr. 84-107, 136-45 (Initial); Tr. 108-35, 151-56 (Recon.). On April 5, 2016, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 47-83. On June 1, 2016, the ALJ found Plaintiff not disabled. Tr. 15-40. The Appeals Council denied review. Tr. 1-5.


         Plaintiff alleges disability based on having thyroid disease, vision problems, pain in the lower back, hips, and leg, and problems with both shoulders. Tr. 238, 266. At the time of the hearing, she was forty-nine years old. Tr. 199 (showing date of birth). She has a tenth-grade education and has past relevant work experience as a fast-food cook, waitress, fast-food worker, bartender, and cashier. Tr. 32-33, 54, 74.


         A claimant is disabled if 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), 1382c(3)(a).

         Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

         In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether plaintiffs impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.


         At step one, the ALJ determined that Plaintiff met the insured status requirements of the Social Security Act through March 31, 2017, and had not engaged in substantial gainful activity since her alleged onset date. Tr. 20. Next, at step two, the ALJ determined that Plaintiff has severe impairments of obesity, right and left shoulder rotator cuff tear status post-surgery, degenerative joint disease, and degenerate disc disease with reported lower back, knee, and hip pain. Tr. 21-24. At step three, the ALJ found that these impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 24-25.

         At step four, the ALJ concluded that Plaintiff has the RFC to lift and/or carry twenty pounds occasionally and ten pounds frequently (including upward pulling); to stand and/or walk about six hours in an eight-hour day; and to sit for about six hours in an eight-hour day. Tr. 25. Further, she can bilaterally operate foot controls occasionally; can bilaterally reach overhead with the upper extremities occasionally; can occasionally climb ramps or stairs; can never climb ladders, ropes, or scaffolds; can balance frequently, can kneel, crouch, stoop, or bend occasionally; and can never crawl. Id. Finally, she can have no more than occasional exposure to vibration and no exposure to hazards such as dangerous machinery or unprotected heights. Id. With this RFC, the ALJ determined that Plaintiff can perform her past relevant work of fast-food worker and cashier. Tr. 32. Alternatively, at step five, the ALJ determined that Plaintiff can perform jobs that exist in significant numbers in the economy such as motel maid, sales attendant, and marking clerk. Tr. 34. Thus, the ALJ determined that Plaintiff is not disabled. Tr. 34-35.


         A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted).


         Plaintiff argues that the ALJ erred by (1) rejecting her subjective limitations testimony; (2) giving little weight to the opinions of two treating physicians; and (3) finding that she can ...

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