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Mike S. v. Berryhill

United States District Court, D. Oregon

October 18, 2018

MIKE S., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.

          Richard F. McGinty, McGinty & Belcher, Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney, United States Attorney's Office, Alexis L. Toma, Special Assistant United States Attorney, Office of General Counsel, Social Security Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon United States District Judge.

         Mike S. (“Plaintiff) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his application for Supplemental Security Income (“SSI”). AR 499. For the reasons discussed below, the Commissioner's decision is affirmed.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means “more than a mere scintilla but less than a preponderance.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

         Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.

         BACKGROUND

         A. Plaintiff's Application

         Plaintiff protectively filed for SSI on April 27, 2011. In his initial claim, Plaintiff alleged a disability onset date of November 15, 2007. AR 46. At his original hearing before an Administrative Law Judge (“ALJ”), Plaintiff amended his alleged onset date to April 27, 2011. AR 502. Plaintiff alleged disability due to a herniated disc in his lower back, hip dysplasia, right wrist arthritis, hernias, vascular disorder in his legs, restless leg syndrome, learning disability, and depression. AR 46. Plaintiff was born October 5, 1970, and is currently 48 years old. Id.

         Plaintiff was 40 years old as of the disability onset date. Plaintiff's claim was denied initially on September 1, 2011, and upon reconsideration on December 29, 2011. Plaintiff's first hearing before an ALJ occurred on February 6, 2013. AR 24. On February 22, 2013, ALJ John Bauer found Plaintiff not disabled and not entitled to SSI under the Social Security Act. AR 20.

         Plaintiff then appealed ALJ Bauer's decision to the Appeals Council and submitted new evidence, including an assessment by Dr. David Freed, Ph.D. and treatment notes from Northwest Human Services. AR 4. Despite this new evidence, the Appeals Council denied Plaintiff's request for review on May 22, 2014. AR 1. Plaintiff subsequently filed a complaint in district court on July 18, 2014, seeking judicial review of the Commissioner's final decision denying his application for SSI.

         The Court reversed the decision of ALJ Bauer. [Mike S.] v. Colvin, 2015 WL 4994195, at *5 (D. Or. Aug. 19, 2015). The Court remanded for additional findings to (1) consider the assessment of Dr. Freed and (2) resolve a conflict between ALJ Bauer's assessment of Plaintiff's residual functional capacity (“RFC”) and the recommendations of two nonexamining psychologists. Id.

         Plaintiff received a second hearing on September 15, 2016, before Administrative Law Judge Gene Duncan (the “ALJ”). AR 502. On January 30, 2017, the ALJ issued a decision that again found Plaintiff not disabled and not entitled to SSI. AR 516. Plaintiff subsequently requested review of the ALJ's decision, which is the final decision of the Commissioner.

         B. The Sequential Analysis

         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 t he meaning of the Social Security Act.” Keyser v. Comm 'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment “severe” under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or equal” one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's “residual functional capacity” (“RFC”). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

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. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. 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.” Id; 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; Tackett, 180 F.3d at 1099.

         C. The ALJ's Decision

         At step one, the ALJ found Plaintiff had not participated in gainful activity since April 27, 2011. AR 504. At step two, the ALJ found the following severe medical impairments, which more than minimally affect Plaintiffs ability to work: degenerative j oint and disc disease of the cervical, thoracic, and lumbar spine; right wrist osteoarthritis; congenital hip dysplasia; missing index finger from the non-dominant left hand; learning disorder; and depressive disorder, not otherwise specified. AR 505. The ALJ also noted that Plaintiff had been evaluated for other symptoms and complaints, some of which included: sleep apnea; small inguinal hernia; hepatitis C; asthma; and restless leg syndrome. Id. The ALJ concluded that these conditions did not constitute severe impairments. Id.

         At step three, the ALJ found that Plaintiff does not have any impairment or combination of impairments that meets the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. Id.

         The ALJ then evaluated Plaintiffs RFC, considering both the evidence available in Plaintiffs first hearing and the additional evidence submitted to the Appeals Council. The ALJ revised the RFC finding from the first hearing, and found that Plaintiff had an RFC as follows:

[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) subject to the following limitations. He can perform simple, routine, and learned tasks. He can occasionally push or pull with the right upper extremity. He can occasionally make postural movements. He can perform work that does not require him to climb ladders or work at heights. He can perform work that avoids concentrated exposure to pulmonary irritants. He can frequently grasp, handle, fine finger, and feel. He can frequently balance, kneel, or climb ramps or stairs. He can perform work that avoids walking on uneven surfaces.

AR 507.

         At step four, the ALJ considered Plaintiffs RFC, testimony from the vocational expert (“VE”), and the mental and physical demands of Plaintiff s past relevant work as a floor covering installer. AR 515. The ALJ concluded that Plaintiffs RFC precluded performance of Plaintiffs past relevant work. Id.

         At step five, the ALJ considered Plaintiffs RFC, age, education, work experience, and the VE's testimony to determine that jobs exist in significant numbers in the national economy that Plaintiff could perform. AR 516. These jobs included work as an addressor, nut sorter, and document preparer. I ...


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