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Scott S. v. Berryhill

United States District Court, D. Oregon, Eugene Division

January 15, 2019

SCOTT S., [1] Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          JOHN E. HAAPALA, JR., DREW L. JOHNSON Drew L. Johnson, P.C. Attorneys for Plaintiff

          BILLY J. WILLIAMS United States Attorney RENATA GOWIE Assistant United States Attorney District of Oregon

          CATHERINE ESCOBAR Special Assistant United States Attorney

          HEATHER GRIFFITH Special Assistant United States Attorney Office of the General Counsel Social Security Administration Attorneys for Defendant

          FINDINGS AND RECOMMENDATION

          MUSTAFA T. KASUBHAI, UNITED STATES MAGISTRATE JUDGE

         Introduction

         Scott S. (“Plaintiff”) seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) denying his application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (Act). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3). For the reasons set forth below, that decision should be AFFIRMED.

         Background

         Plaintiff protectively filed for SSI on March 12, 2014, alleging disability beginning January 1, 2002. Tr. 18. His application was denied initially, and upon reconsideration. Tr. 18. A hearing was held before an administrative law judge (“ALJ”) on October 18, 2016. Plaintiff testified, as did a vocational expert (“VE”), and Charles Cooke, M.D., an impartial medical expert. Id. On December 17, 2016, the ALJ issued an unfavorable decision, finding Plaintiff not disabled. Tr. 15. On December 28, 2017, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision, the final decision of the Commissioner. Tr. 1. Plaintiff timely filed this request for district court review.

         Born on April 2, 1963, Plaintiff was 50 years old when he filed for SSI and 53 years old at the time of his hearing before the ALJ. Tr. 67. He completed his GED in 1982. Tr. 198. Over the past 15 years, Plaintiff worked sporadically, doing odd jobs like landscaping, collecting cans, and metal scrapping. Tr. 43-45, 198, 204. Plaintiff alleged disability due to back injury, degenerative disc disease, high blood pressure, and bursitis in his left shoulder. Tr. 67, 79, 233.

         Standard of Review

         The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “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.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. First, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(a)(4)(i). If so, the claimant is not disabled.

         At step two, the Commissioner evaluates whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 416.920(c). If the claimant does not have a medically determinable, severe impairment, he is not disabled.

         At step three, the Commissioner determines whether the claimant's impairments, either 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 140-41; 20 C.F.R. § 416.920(d). If so, the claimant is presumptively disabled. Yuckert, 482 U.S. at 141.

         If the claimant's impairments are not equivalent to one of the enumerated impairments, between the third and fourth steps the ALJ is required to assess the claimant's residual functional capacity (“RFC”), based on all the relevant medical and other evidence in the claimant's record. See 20 C.F.R § 416.920(e). The RFC is an estimate of the claimant's capacity to perform sustained, work-related physical and/or mental activities on a regular and continuing basis, despite limitations imposed by the claimant's impairments. See § 416.945; see also SSR 96-8p, 1996 WL 374184.

         At step four, the Commissioner resolves whether the claimant can still perform “past relevant work.” 2 0 C.F.R. § 416.920(f). If the claimant can work, he is not disabled; if he 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 existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141 - 42; 20 C.F.R. § 416.920(g). If the Commissioner meets this burden, the claimant is not disabled.

         The ALJ's Findings

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since March 12, 2014, the date of his application. Tr. 20.

         At step two, the ALJ found Plaintiff had severe impairments of degenerative disc disease and bursitis of the left shoulder. Id. The ALJ also found Plaintiff's medically determinable conditions of hypertension and shingles to be non-severe ...


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