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Norman N. v. Commissioner Social Security

United States District Court, D. Oregon, Portland Division

March 25, 2019

NORMAN N., [1] Plaintiff,


          Youlee Yim You United States Magistrate Judge.


         Plaintiff, Norman N., seeks judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act (“Act”). 42 U.S.C. §§ 401-433, 1381-1383f. This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c) (ECF #10). For the reasons below, the Commissioner's decision is REVERSED and REMANDED for further proceedings.


         On January 26, 2015, plaintiff protectively filed for DIB and SSI alleging a disability onset date of January 1, 2014. Tr. 18.[2] He requested a hearing after his application was denied initially and on reconsideration. Tr. 93, 99, 102, 105. On December 14, 2016, a hearing was held before Administrative Law Judge (“ALJ”) S. Pines, wherein plaintiff was represented by counsel and testified, as did a vocational expert (“VE”). Tr. 37-55. ALJ Pines issued a decision on February 16, 2017, finding plaintiff not disabled within the meaning of the Act. Tr. 18-30. After the Appeals Council denied his request for review, plaintiff filed a complaint in this court. Tr. 1-5. The ALJ's decision is therefore the Commissioner's final decision subject to review by this court. 20 C.F.R. §§ 404.981, 422.210.


         Born in 1966, plaintiff was 47 years old on the alleged disability onset date, and 50 years old at the time of his administrative hearing. Tr. 150. He obtained a general education diploma (“GED”). Tr. 43. He has past relevant work experience as an assistant manager in retail. Tr. 28. Plaintiff alleges disability due to neck surgeries, left-shoulder surgeries, back pain, anxiety, depression, high blood pressure, and constant severe pain. Tr. 189.


         The reviewing 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. 42 U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and “‘may not affirm simply by isolating a specific quantum of supporting evidence.'” Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The reviewing court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (citation omitted). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is “supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.


         Disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. This sequential analysis is set forth in Social Security Administration regulations, 20 C.F.R. §§ 404.1520, 416.920, in Ninth Circuit case law, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)), and in the ALJ's decision, Tr. 18-20.

         At step one, the ALJ concluded plaintiff had not engaged in substantial gainful activity since January 1, 2014, the alleged onset date of disability. Tr. 20.

         At step two, the ALJ determined that plaintiff had the following severe impairments: status post left shoulder decompression and labral tear repair; chronic low back and neck pain, status post cervical fusion; hypertension; obesity; depression; and anxiety disorder. Id.

         At step three, the ALJ concluded plaintiff did not have an impairment or combination of impairments that met or equaled any listed impairment. Tr. 21-23.

         The ALJ then found plaintiff has the residual functional capacity (“RFC”) to perform less than the full range of light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), with the following limitations:

[He] can stand and walk for four hours, can sit for six hours; can occasionally climb ramps and stairs; can never climb ladders, ropes, and scaffolds; can occasionally reach overhead, and can frequently reach in other directions; can occasionally balance, stoop, kneel, crouch, and crawl; should not have concentrated exposure to hazards; can have occasional contact with the public; and limited to simple routine work at the unskilled level.

Tr. 23.

         At step four, the ALJ determined that plaintiff was unable to perform his past relevant work. Tr. 28.

         At step five, the ALJ determined that plaintiff could perform jobs that exist in significant No. in the national economy, including storage facility rental clerk, price marker, and small products assembler. Tr. 29-30. Accordingly, the ALJ concluded that plaintiff was not disabled at any time through the date of her decision. Tr. 30.


         Plaintiff argues that the ALJ erred by: (1) failing to give clear and convincing reasons for discounting his symptom testimony, and (2) failing to give legally sufficient reasons for rejecting the opinions of Dominique Greco, MD, ...

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