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Conway v. Berryhill

United States District Court, D. Oregon

September 10, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Charles Conway Jr. brings this action for judicial review of a final decision of the Commissioner of Social Security denying his applications for Title II disability insurance benefits (DIB) and Supplemental Security Income (SSI) under Title XVI of the Social Security Act. The Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). Plaintiff submits that the ALJ's conclusion that Plaintiff did not meet Listing 1.04A at step-three was unreasonable. Plaintiff also contends that the ALJ did not give sufficient consideration to the medical evidence and symptom testimony in the record. Finally, Plaintiff objects to the ALJ's assessment of Plaintiff's residual functional capacity. Because the Commissioner's decision is based on proper legal standards and supported by substantial evidence, the Commissioner's decision is AFFIRMED.


         Plaintiff filed an application for DIB and SSI on November 15, 2011, alleging disability onset on June 28, 2010. Tr. 18. His application was initially denied on April 10, 2012 and again on reconsideration on August 28, 2012. Id. A hearing was held on October 17, 2013. A supplemental hearing based on new evidence was held on April 30, 2014 and Plaintiff's onset date was amended to October 14, 2010. Id. On July 11, 2014, the ALJ found that Mr. Conway was not disabled. Id. The case was then remanded from the Appeals Council on December 4, 2015. Id. A subsequent hearing was held on June 3, 2016 and the ALJ issued an unfavorable decision on July 7, 2016. Tr. 35. The Appeals Council denied review on October 24, 2016. Tr. 1-7.


         The reviewing court shall 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 for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence is ‘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.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, this Court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

         The Commissioner's findings are upheld if supported by inferences reasonably drawn from the record; if evidence exists to support more than one rational interpretation, the court must defer to the Commissioner's decision. Batson, 359 F.3d at 1193; Aukland v. Massanari, 257 F.3d 1033, 1034-35 (9th Cir. 2000) (when evidence can rationally be interpreted in more than one way, the court must uphold the Commissioner's decision). A reviewing court, however, “cannot affirm the Commissioner's decision on a ground that the Administration did not invoke in making its decision.” Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). 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). The ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th. Cir. 2008).

         The ALJ need not discuss all evidence presented, but must explain why significant probative evidence has been rejected. Stark v. Shalala, 886 F.Supp. 733, 735 (D. Or. 1995). See also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (in interpreting the evidence and developing the record, the ALJ need not discuss every piece of evidence).


         I. ALJ's Findings

         The Social Security Administration uses a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520; 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner at step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity, age, education, and work experience. Id.

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the amended alleged onset date of October 14, 2010. Tr. 21. At step two, the ALJ found that Plaintiff had severe impairments of degenerative disc disease, status post laminectomy with recurrent herniation at ¶ 4-5; obesity; and status post right wrist fraction with open reduction/internal fixation (ORIF). Tr. 21-22. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment that would be per se disabling. Tr. 22-23. The ALJ found Plaintiff had the residual functional capacity to perform sedentary work with the following additional limitations:

He is limited to sitting 5 hours in an 8-hour day, standing 2 hours in an 8-hour day, and walking 1 hour in an 8-hour day. He requires the option to alternate positions at will and can sit for 1 hour at a time, stand for 30 minutes at a time, and walk for 10 minutes at a time before needing to change positions. He will remain on task while doing so. The claimant requires the option to use a cane in the workplace with one hand. This will not affect his ability to lift. The claimant is limited to no climbing of ramps, stairs, ladders, ropes, or scaffolds. He is limited to frequent balancing. He is limited to occasional stooping. He can never crouch, kneel, or crawl. He is limited to frequent pushing, pulling, handling, reaching, fingering, and feeling with the dominant (right) upper extremity. The claimant is limited to no operation of foot controls. He is limited to no concentrated ...

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