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Tamir v. Berryhill

United States District Court, D. Oregon, Portland Division

March 21, 2019

TAMIR.,[1] Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Tami R. ("Plaintiff) seeks judicial review of the Commissioner of Social Security's decision denying her application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). I have jurisdiction under 42 U.S.C. § 405(g) to review the decision of the Administrative Law Judge (ALJ). For the reasons stated below, I AFFIRM the ALJ's decision.


         Plaintiff filed her application for DIB and SSI with the Commissioner on September 26, 2013, alleging a disability onset date of October 26, 1999. The DIB and SSI claims were initially denied on December 10, 2013, and again upon reconsideration on May 13, 2014. Plaintiff then filed a timely request for a hearing on June 17, 2014. An ALJ held a hearing on October 6, 2015, in which Plaintiff was represented by council and testified, as did a Vocational Expert. Plaintiff provided additional evidence after the hearing. See Tr. 1309-11. The ALJ issued a decision on January 5, 2016, finding that Plaintiff was not disabled, as defined by the Social Security Act ("the Act"), during the period from October 26, 1999 until the date of the decision. The Appeals Council denied Plaintiffs request for review. After receiving an extension of time from the Commissioner, Plaintiff timely filed for review in this Court. Plaintiff brings this claim pro se.


         The ALJ made her decision based upon the five-step sequential evaluation process established by the Secretary of Health and Human Services. See Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R. § 404.1520. At the first four steps of the process, the burden of proof is on the claimant. Only at the fifth and final step does the burden of proof shift to the Commissioner. Id. at 1098.

         At Step One, the ALJ determined that Plaintiff did not engage in substantial gainful activity since her alleged onset date of October 26, 1999. At Step Two, the ALJ determined that Plaintiff suffered from the severe impairments of degenerative disc disease, migraines, right carpal tunnel syndrome, and chronic kidney stones. Tr. 24. Severe impairments are those that "significantly limit [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). The ALJ's determination that a claimant has a severe impairment does not mean that the claimant is disabled. At Step Three, the ALJ is tasked with determining if one or more of a claimant's severe impairments "meets or equals" one of the presumptively disabling impairments listed in the SSA regulations. 20 C.F.R. § 404.1520(a)(4)(iii). In this case, the ALJ determined at Step Three that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 24. Next, the ALJ determined that Plaintiff had the residual functional capacity (RFC) to perform sedentary work, with the ability to frequently perform handling, fingering, and feeling with the hand. Tr. 25. Plaintiffs RFC also included the ability to frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. Id. The RFC contained the restriction that Plaintiff could never climb ladders, ropes, or scaffolds. Id. The ALJ found at Step Four that Plaintiff did not have any past relevant work. Tr. 36. At Step Five, the ALJ found that Plaintiff was capable of performing jobs that exist in significant numbers in the national economy. Id. Because the ALJ determined that Plaintiff had the RFC to perform work that existed in significant numbers in the national economy, Plaintiff was not disabled under the Act. 20 C.F.R. § 404.1566.


         I review the ALJ's decision to ensure the ALJ applied proper legal standards and that the ALJ's findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Bray v. Comm 'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (explaining that the ALJ's decision must be supported by substantial evidence and not based on legal error). '"Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). The Commissioner's decision must be upheld if it is a rational interpretation of the evidence, even if there are other possible rational interpretations. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Where the evidence can support affirming the ALJ's decision, the reviewing court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882.

         In cases involving a plaintiff proceeding pro se, courts must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007).


         Construing Plaintiffs Brief [36] liberally, she argues the ALJ erred by (1) failing to develop the record fully, as required by 20 C.F.R. § 416.945; and (2) improperly discounting Plaintiffs testimony about the debilitating effects of her pain. If the ALJ improperly discounted Plaintiff's symptom testimony, this error would warrant remand because the RFC did not account for the level and frequency of pain reported by Plaintiff.

         I. The ALJ's Development of the Medical Record

         Plaintiffs first argument in support of remand relies on her reading of 20 C.F.R. § 416.945(a)(3), which states that the Commissioner is "responsible for developing your complete medical history, including arranging for a consultative examination(s) if necessary, and making every reasonable effort to help you get medical reports from your own medical sources." Plaintiff claims that the Commissioner did not perform "due diligence ...

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