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Danya B. v. Berryhill

United States District Court, D. Oregon, Portland Division

October 24, 2018

DANYA B., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          George J. Wall Attorney for Plaintiff

          Billy Williams United States Attorney Assistant United States Attorney Kathryn Ann Miller Social Security Administration Attorneys for Defendant

          OPINION & ORDER


         Plaintiff Danya B. brings this action for judicial review of the Commissioner's final decision denying her applications for disability insurance benefits (“DIB”) under Title II of the Social Security Act and supplemental security income (“SSI”) under Title XVI of the Act. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). The issues before the Court are whether the Administrative Law Judge (“ALJ”) erred by: (1) discounting Plaintiff's testimony; (2) discounting the opinion of Maria Foy, FNP, Plaintiff's primary-care provider; and (3) discounting the opinion of the testifying medical expert, Melvin M. Harter, M.D. The Court affirms the Commissioner's final decision.


         Plaintiff applied for DIB on June 28, 2013, and SSI on September 27, 2013, alleging a disability onset date of July 31, 2009. Tr. 282, 289.[2] Plaintiff's applications were denied initially and upon reconsideration. Plaintiff's first administrative hearing was held on December 1, 2015, before ALJ S. Andrew Grace. Tr. 71. At the initial hearing, Plaintiff amended her alleged onset date to January 6, 2011. Tr. 75. After the initial hearing, the ALJ received additional medical evidence including a comprehensive physical examination. The ALJ then held a second hearing on May 5, 2016, at which Dr. Harter testified as a nonexamining medical expert. Tr. 53, 55. In a written decision issued July 23, 2016, ALJ Grace found Plaintiff disabled beginning April 1, 2014. Tr. 20-46. ALJ Grace, however, found Plaintiff was not disabled before April 1, 2014. On August 22, 2017, the Appeals Council denied review, rendering ALJ Grace's decision final. Tr. 1-5.


         A claimant is disabled if 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). Disability claims are evaluated according to a five-step procedure. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.

         At 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). At 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.

         At step three, the Commissioner determines whether claimant's 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.

         At step four, the Commissioner determines whether the claimant, despite any impairment(s), has the RFC to perform “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. At 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 its 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 found Plaintiff had not engaged in substantial gainful activity since January 6, 2011, the amended alleged onset date. Tr. 22.

         At step two, the ALJ determined Plaintiff had the following severe impairments before April 1, 2014: obesity, sleep apnea, degenerative disc disease of the lumbar spine “status-post [two] back surgeries, ” migraine headaches, post-traumatic stress disorder (“PTSD”), anxiety disorder, adjustment disorder, and a “history of personality disorder.” Tr. 22. The ALJ also found Plaintiff had the following additional severe impairments as of April 1, 2014: left knee meniscus tear and chondromalacia patella, bilateral lower extremity edema, and asthma. Tr. 22-24.

         At step three, the ALJ found Plaintiff's impairments or combination of impairments did not meet or equal the severity of one of the listed impairments. Tr. 24-28.

         Before step four, the ALJ determined Plaintiff had the RFC prior to April 1, 2014, to perform work consistent with the following limitations:

[T]he claimant had the residual functional capacity to perform light work, which is defined in 20 CFR 404.1567(b) and 416.967(b). The claimant required permission to change position from sitting to standing or standing to sitting approximately every 30 minutes at the work station, thereby resulting in no loss of productivity other than the very brief time required to accomplish the position change. She was not able to climb ladders, ropes, or scaffolds or to crawl. She was able occasionally to climb ramps and stairs and occasionally to balance, stoop, kneel, and crouch. The claimant had to avoid concentrated exposure to vibrations and hazards. She was able to perform simple, routine, repetitive tasks consistent with unskilled work in jobs that required no more than occasional, superficial contact with the public and co-workers.

Tr. 28-39. The ALJ also determined, however, that as of April 1, 2014, Plaintiff “had the residual functional capacity to perform light work” as she did before April 1, 2014, but that “she further must be permitted to take 3 extra breaks per day, for 15 minutes each, in addition to standard breaks.” Tr. 39-41.

         At step four, the ALJ determined Plaintiff was unable to perform her past relevant work as a telemarketer, office helper, general production worker, customer-service representative, or child monitor. Tr. 41-43.

         At step five, the ALJ concluded other jobs existed in the national economy that Plaintiff could perform before April 1, 2014, including work as a mail clerk, a merchandise marker, and a hand packager. Tr. 44. The ALJ also found that as of April 1, 2014, there were not any jobs that existed in significant numbers in the national economy that Plaintiff could perform. Tr. 45. Accordingly, the ...

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