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Zachary v. Berryhill

United States District Court, D. Oregon

December 12, 2018

Zachary, 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.

          Katherine L. Eitenmiller, Brent Wells, harder, Wells, Baron & Manning, P.C., Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney, United States Attorney's Office, 1 Michael Howard, Special Assistant United States Attorney, Office of General Counsel, Social Security Administration, Of Attorneys for Defendant.

          OPINION AND ORDER

          MICHAEL H. SIMON, DISTRICT JUDGE.

         Plaintiff Zachary S. (“Plaintiff”), seeks judicial review of the final decision by the Social Security Administration (“Defendant” or “Administration”) denying Plaintiff's application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. This Court has jurisdiction to review the Administration's decision pursuant to 42 U.S.C. § 405(g). For the reasons discussed below, Defendant's decision denying Plaintiff's application for DIB is AFFIRMED.

         STANDARD OF REVIEW

         The district court must affirm the Administration'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 Administration'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 Administration's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Administration. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 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 Administration on a ground upon which the Administration did not rely. Id.; see also Bray, 554 F.3d at 1226.

         BACKGROUND

         A. Plaintiff's Application

         Plaintiff was born on August 19, 1986. AR 33. Plaintiff filed for DIB on May 14, 2013, alleging disability beginning on July 31, 2011. AR 21. Plaintiff was 24 years old on the alleged disability onset date. Id. Defendant denied Plaintiffs application initially on December 26, 2013, and upon reconsideration on May 6, 2014. Id. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ ”). On May 2, 2016, the ALJ found that the Plaintiff was not disabled within the meaning of the Social Security Act. Id. The Appeals Council declined Plaintiffs request for review of the ALJ's decision. AR 1. Plaintiff now seeks judicial review of the ALJ's decision.

         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 the 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 Administration'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 Administration 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 Administration 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 Administration 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

         The ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act. AR 21. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since July 31, 2011. Plaintiff was employed at a pizza restaurant from December 2011 to March 2012. AR 23. Earnings from this position were not enough to qualify as substantial gainful activity. AR 23. The ALJ, however, did not consider this employment an unsuccessful work attempt because Plaintiff did not mention physical or mental health symptoms as factors that contributed to his decision to stop working at the restaurant. AR 23. Plaintiff also worked in 2012 for his mother at her salon, and as a janitor. AR 24. Plaintiff did not report earnings from these positions, but the ALJ found that determining whether those employment positions qualified as substantial gainful activity was unnecessary because Plaintiff's DIB determination could be decided on other grounds. AR 24.

         At step two, the ALJ found that Plaintiff had the following severe medical impairments: history of bipolar disorder with depression and anxiety; a history of Asperger's; and marijuana dependence. AR 24. The ALJ found that these impairments caused more than minimal restrictions of the claimant's ability to perform work-related activities. The ALJ found that recurring headaches and sleep apnea were non-severe and did not establish any resulting limitations that would significantly affect Plaintiff's ability to perform basic work activities. Id.

         At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. Id. The ALJ then determined that Plaintiff has an RFC to perform a full range of work at all exertional levels but with some non-exertional limitations. AR 26. Specifically, Plaintiff is limited to performing simple, repetitive, routine tasks that require only occasional interaction with co-workers and no interaction with the general public. Id. At step four, the ALJ considered ...


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