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Ryan T. v. Berryhill

United States District Court, D. Oregon

March 20, 2019

RYAN T.,[1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

         Ryan T. (“Plaintiff”) brings this appeal challenging the Commissioner of the Social Security Administration's (“Commissioner”) denial of his application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 1383(c)(3), which incorporates the review provisions of 42 U.S.C. § 405(g). For the reasons explained below, the Court affirms the Commissioner's decision because it is free of harmful legal error and supported by substantial evidence.

         BACKGROUND

         Plaintiff was born in April 1988, making him twenty-five years old on March 28, 2014, the day he filed his protective application.[2] (Tr. 23.) Plaintiff has a limited education and past relevant work experience as a lubrication servicer. (Tr. 22-23.) In his application for SSI, Plaintiff alleges disability due to diabetes, gastroparesis, neuropathy, and Cushing's disease.[3](Tr. 58, 70.)

         On August 13, 2014, Dr. Martin Kehrli (“Dr. Kehrli”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 64-65.) Dr. Kehrli concluded that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently; sit, stand, and walk for six hours during an eight-hour workday; and push and pull in accordance with his lifting and carrying restrictions. Dr. Kehrli also concluded that Plaintiff does not suffer from postural, manipulative, visual, or communicative limitations, but Plaintiff does need to avoid even moderate exposure to hazards, such as machinery and heights (environmental limitation).

         On August 15, 2014, Dr. Sandra Lundblad (“Dr. Lundblad”), a non-examining state agency psychologist, completed a psychiatric review technique form. (Tr. 62-63.) Dr. Lundblad determined that Plaintiff's mental impairments failed to meet or equal listing 12.09 (substance addiction disorders).

         On January 1, 2015, Dr. Leslie Arnold (“Dr. Arnold”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 77-78.) Dr. Arnold reviewed Plaintiff's medical records and agreed with Dr. Kehrli's assessment in all relevant respects.

         On January 12, 2017, Plaintiff appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 32-57.) Plaintiff testified that he was pulled out of school in the ninth grade because he was “too sick” and needed to undergo multiple surgeries to remove cancerous tumors from his pituitary gland; he last worked full-time at Jiffy Lube in 2006 and 2007; he quit working at Jiffy Lube and moved back to Oregon to “live with [his] mom again” because he “started getting weaker and . . . started having more and more health complications with low energy levels”; and he suffers from seizures. (Tr. 36-39.) In addition, Plaintiff testified that he was diagnosed with gastroparesis and received a gastric stimulator, which has “kind of helped”; he has a history of methamphetamine and marijuana use; he used marijuana for pain and to help increase his appetite when he was sick; he previously sold methamphetamine because his father, who is incarcerated, “was dealing at th[e] time and . . . it was the only way for [Plaintiff] to make money”; he tested positive for methamphetamines on October 28, 2015, but he has “abstained from all mood and mind altering . . . drugs since”; he does not drink alcohol; he completed a “really intense” drug rehabilitation program “when [he] was incarcerated”; he was released from custody on December 7, 2016; he attends Narcotics Anonymous (“NA”) meetings twice a week; he would like to earn his General Equivalency Diploma and work on cars; and he continues to suffer from gastroparesis symptoms, such as nausea, vomiting, and diarrhea, despite having his gastric stimulator fixed in August 2013. (Tr. 39-45.)

         The ALJ posed several hypothetical questions to a Vocational Expert (“VE”) who testified at Plaintiff's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience could perform light work that: (1) involves frequently balancing and pedaling “with both lower extremities”; and (2) does not involve climbing ladders, ropes, and scaffolds, or exposure to hazards. (Tr. 54.) The VE testified that the hypothetical worker could not perform Plaintiff's past relevant work as a lubrication servicer, but the hypothetical worker could be employed as a cashier II, office helper, and product assembler. (Tr. 53-54.)

         Second, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience could perform sedentary work that: (1) involves frequently balancing, crawling, and pedaling “with both lower extremities”; and (2) does not involve climbing ladders, ropes, and scaffolds, or exposure to hazards. (Tr. 55.) The VE testified that the hypothetical worker could not perform Plaintiff's past relevant work as a lubrication servicer, but the hypothetical worker could be employed as a document preparer, assembler, and order clerk. (Tr. 55.) Responding to the ALJ's third and final hypothetical, the VE confirmed that the hypothetical worker could not sustain gainful employment if he was “absent from work more than two days per month due to the side effects of medication and other required treatment.” (Tr. 56.)

         On March 20, 2017, the ALJ referred Plaintiff to Dr. Raymond Nolan (“Dr. Nolan”) for a consultative examination. (Tr. 2891-93.) Dr. Nolan determined that Plaintiff suffers from “type I diabetes mellitus with [a] history of diabetic retinopathy, . . . diabetic peripheral neuropathy, and autonomic neuropathy including gastroparesis and resting tachycardia”; chronic “low back pain syndrome”; chronic “shoulder pain with modest restriction of [his] right shoulder range of motion”; and a history of Cushing's disease, which “might have [only] been an issue prior to the resection of [Plaintiff's] pituitary.” (Tr. 2892.) With respect to functional capabilities, Dr. Nolan stated:

[T]his man would want to restrict bending, twisting and turning of the trunk. Lifting and carrying should be limited to 10 pounds on a frequent basis and up to 20 pounds on occasion. Pushing and pulling activity involving his upper extremity should be limited to occasional basis, particularly on the right side and use of [the] right arm extended overhead should be limited to the low end of occasional basis. Because there is [a] substantial question as to [Plaintiff's] level of diabetic control, he would not want to be working in unprotected heights or around moving equipment. . . . He should be able to sit for at least six hours in an eight-hour day with a liberal policy for position change if needed for comfort. He should be able to stand and/or walk for up to four hours in an eight-hour day. Appropriate breaks as needed for comfort. . . . The recurring episodes of nausea and vomiting associated with that gastroparesis can be problematic in terms of reliability of showing up for work.

(Tr. 2892; see also Tr. 2894-99, setting forth Dr. Nolan's medical source statement dated March 20, 2017).

         In a written decision issued on April 26, 2017, the ALJ applied the five-step evaluation process set forth in 20 C.F.R. § 416.920(a)(4), and determined that Plaintiff was not disabled. See infra. The Social Security Administration Appeals Council denied Plaintiff's petition for review, making the ALJ's decision the Commissioner's final decision. Plaintiff timely appealed to federal court.

         THE FIVE-STEP DISABILITY ANALYSIS

         I. LEGAL STANDARD

         A claimant is considered 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). Those five steps are: (1) whether the claimant is presently engaged in any substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the claimant is capable of performing other work that exists in significant numbers in the national economy. Id. at 724-25. The claimant bears the burden of proof at the first four steps. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).

         The Commissioner bears the burden of proof at step five of the process, where the Commissioner must show 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.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954 (citations omitted).

         II. THE ALJ'S DECISION

         The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is disabled. (Tr. 13-24.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since March 28, 2014, the day he filed his protective application. (Tr. 15.) At step two, the ALJ determined that Plaintiff suffered from the following severe impairments: “[D]iabetes mellitus, type I; diabetic ketoacidosis (DKA); diabetic neuropathy; a history of diabetic gastroparesis, status post-gastric pacemaker implantation; Cushing's disease; and headaches.” (Tr. 15.) At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or equals a listed impairment. (Tr. 17.) The ALJ then concluded that Plaintiff had the residual functional capacity (“RFC”) to perform light work, subject to the following limitations: (1) Plaintiff “can frequently balance” and “frequently pedal with his bilateral lower extremities”; (2) Plaintiff “can never climb ladders, ropes, or scaffolds”; and (3) Plaintiff “can tolerate no exposure to workplace hazards, such as machinery and unprotected heights.” (Tr. 18.) At step four, the ALJ concluded that Plaintiff was unable to perform his past relevant work as a lubrication servicer. (Tr. 22.) At step five, the ALJ concluded that Plaintiff was not disabled because a significant number of jobs existed in the national economy that he could perform, including work as a cashier II, “[a]ssembler, production, ” and office helper. (Tr. 23-24.)

         ANALYSIS

         I. STANDARD OF REVIEW

         The district court may set aside a denial of benefits only if the Commissioner's findings are “‘not supported by substantial evidence or based on legal error.'” Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).

         The district court “cannot affirm the Commissioner's decision ‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire record, weighing the evidence that both supports and detracts from the Commissioner's conclusions. Id. If the evidence as a whole can support more than one rational interpretation, the ALJ's decision must be upheld; the district court may not substitute its judgment for the judgment of the ALJ. Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).

         II. DISCUSSION

         In this appeal, Plaintiff argues that the ALJ: (1) made a de facto reopening of Plaintiff's previously denied application for SSI, or, alternatively, that the ALJ erred by failing to address Plaintiff's request to reopen his previously denied application; (2) failed to provide clear and convincing reasons for discounting Plaintiff's symptom testimony; (3) failed to provide germane reasons for rejecting the lay witness testimony provided by Plaintiff's mother, Dennette T.; (4) failed to provide legally sufficient reasons for discounting the opinion of Plaintiff's examining physician, Dr. Nolan; and (5) failed to account for all of Plaintiff's credible limitations in formulating his RFC. As explained below, the Commissioner's decision is free of harmful legal error and supported by substantial evidence. Accordingly, the Court affirms the Commissioner's decision.

         A. The ...


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