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Christopher V. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Portland Division

January 2, 2019

CHRISTOPHER V.[1], Plaintiff,

          Merrill Schneider SCHNEIDER KERR & ROBICHAUX Attorney for Plaintiff

          Billy J. Williams Renata Gowie Thomas M. Elsberry Attorneys for Defendant

          OPINION & ORDER


         Plaintiff Christopher V. 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 reverse the Commissioner's decision and remand for additional proceedings.


         Plaintiff applied for SSI and DIB on January 21, 2014, alleging an onset date of January 15, 2008. Tr. 211-16, 217-23. His applications were denied initially and on reconsideration. Tr. 74-86, 134-38 (DIB Initial); 87-89, 139-42 (SSI Initial); 100-13, 145-55 (DIB Recon.); 114-31, 156-66 (SSI Recon.).

         On April 21, 2016, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 34-73. On June 21, 2016, the ALJ found Plaintiff not disabled. Tr. 12-33. The Appeals Council denied review. Tr. 1-5.


         Plaintiff alleges disability based on depression, anxiety, post-traumatic stress disorder, shoulder problems, and back problems. Tr. 238, 281. At the time of the hearing, he was thirty-five years old. Tr. 211 (showing date of birth). He has a GED and past relevant work experience as a dishwasher and a construction laborer. Tr. 63, 239.


         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 plaintiff'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.

         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, 2013, and had not engaged in substantial gainful activity since his alleged onset date of January 15, 2008. Tr. 17. At step two, the ALJ determined that Plaintiff has severe impairments of lumbar spine spasms, a possible right rotator cuff tear, anxiety, and depression. Tr. 18. However, at step three, the ALJ found that Plaintiff's impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 18-21.

         At step four, the ALJ concluded that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), but with several limitations including no crawling; occasional performance of other postural tasks; no climbing ladders, ropes, or scaffolds; overhead reaching only rarely; avoidance of exposure to extremes of temperature, vibration, and other workplace hazards; occasional interaction with supervisors and co-workers; and only incidental contact with the general public. Tr. 21.

         With this RFC, the ALJ determined that Plaintiff is unable to perform any of his past relevant work. Tr. 25. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the economy such as electronics worker and small products assembler. Tr. 26-27. Thus, the ALJ determined that Plaintiff is not disabled. Id.


         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 contends that the ALJ made the following errors: (1) improperly rejected the opinions of medical sources; (2) failed to find several impairments severe at step two; (3) improperly rejected his subjective limitations testimony; and (4) failed to conduct an adequate analysis at step five. Defendant concedes that the ALJ erred in his consideration of the opinions of state agency consultant Disability Determination Services (DDS) physicians because the ALJ purported to give their opinions great weight but omitted their assessments regarding Plaintiff's upper extremity and bilateral handling and fingering limitations from the RFC. Def.'s Mem. & Mot. for Remand 4, ECF 21. Based on this concession, Defendant moves to remand for additional proceedings. Plaintiff contends that other non-conceded errors warrant remand for an award of benefits.

         I. Defendant's Argument Regarding the Limitation of Remand

         Defendant argues that while remand is appropriate, the remand should be limited to Plaintiff's SSI Title XVI claim and that the ALJ's decision as to the DIB Title II claim should be affirmed. Defendant relies on the ALJ's discussion of the DDS physician opinions. In discussing the credibility of Plaintiff's symptom testimony, the ALJ recited much of the medical evidence and included this paragraph:

On May 5, 2014, state agency consultants indicated that the claimant had no severe impairments and that there was insufficient evidence to determine whether the claimant had been disabled prior to his date last insured for Title 2 purposes. [Tr, 86, 99]. On October 27, 2014, state agency consultants reconsidered the claimant's applications and confirmed the initial determination that the claimant had no severe impairments prior to the date last insured. [Tr. 109]. For Title 16 purposes, state agency consultants were of the opinion the claimant had a severe impairment from anxiety and personality disorders and indicated he could perform work of a light exertional demand level with occasional postural tasks, limitations in reaching, and without more than occasional changes and limited social interactions. [Tr. 128]. The undersigned gives great weight to the opinion of the state agency consultants regarding the claimant's residual functional capacity on Title 16 reconsideration. Although the consultants did not offer an opinion of the severity of the claimant's back and shoulder, the undersigned has drawn all inferences in favor of the claimant and accepted the opinion that the physical functionality described by state agency consultants is supported by the consultative examination performed by John Ellison, M.D. [Tr. 512-14]. The opinion of state agency consultants regarding the claimant's mental function was also given great weight as consistent with the consultative examinations results offered by Dr. Starbird. [Tr. 515-20].[2]

Tr. 24-25 (emphasis added).

         Defendant focuses on the May 5, 2014 and October 27, 2014 reports on the Title II DIB claim. Defendant observes that as the ALJ noted, both reports indicated that Plaintiff had no severe impairments and there was insufficient evidence to determine whether Plaintiff was disabled before his date of last insured for the Title II claim. Defendant argues that "[t]he ALJ did not reject these opinions nor has Plaintiff challenged these opinions." Def.'s Mem & Mot. to Remand 4. Defendant acknowledges that the ALJ did not explicitly accept these opinions. Id. at 4-5. But, Defendant argues that the ALJ's acceptance is supported by reasonably drawn inferences and thus must be upheld. Based on this, Defendant argues that only the SSI Title XVI claim should be remanded.

         Plaintiff argues that Defendant's position lacks merit. As Plaintiff notes, and as seen in the italicized portion of the ALJ's discussion above, the ALJ expressly adopted only the Title XVI opinions. He made no comment about the Title II claim, meaning he made no affirmative finding that the Title II claim lacked sufficient evidence. Plaintiff further notes that had the ALJ intended to reject the Title II claim based on these opinions, he would have denied the Title II claim at step two because those consultants opined that Plaintiff had no severe impairments in regard to the Title II claim. The ALJ would have then limited ...

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