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Max E. v. Commissioner Social Security Administration

United States District Court, D. Oregon, Eugene Division

April 5, 2019

MAX E., [1] Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.

          TIM WILBORN Wilborn Law Office, P.C. Attorney for Plaintiff

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

          THOMAS M. ELSBERRY 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

         Max E. (“Plaintiff”) seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”) under Title II the Social Security Act (“Act”) and Supplemental Security Income (“SSI”) under Title XVI of the 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 REVERSED and REMANDED for an immediate award of benefits.

         Background

         On September 30, 2014, Plaintiff protectively filed for DIB and SSI, alleging disability beginning May 30, 2014. Tr. 14. His applications were denied initially, and on reconsideration. Tr. 139, 144, 152, 155. Plaintiff subsequently requested a hearing, and on March 6, 2017, Plaintiff testified before an administrative law judge (“ALJ”). Tr. 36-70. A vocational expert (“VE”) also testified. Id. On May 2, 2017, the ALJ issued a decision, finding Plaintiff not disabled. Tr. 11-24. On April 5, 2018, 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 claim for district court review.

         Born September 30, 1979, Plaintiff was 34 years old at the time of his alleged disability onset. Tr. 23. He completed a bachelor's degree and operated his own landscaping and yard maintenance business before his alleged onset date. Tr. 46. Prior to that, he worked for a nursery doing similar landscaping and yard maintenance work, as an animal care technician at an animal shelter. Tr. 46-48. He alleged disability due to clinical depression, cavernous angioma, and loss of lung capacity due to H1N1 and pneumonia. Tr. 239.

         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. See20 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. See20 C.F.R. § 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.” 20 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 Plaintiff had not engaged in substantial gainful activity since May 30, 2014, the alleged onset date. Tr. 16. The ALJ also found that Plaintiff met the insured status requirements of the Act through December 31, 2018. Id.

         At step two, the ALJ found that Plaintiff had severe impairments of epilepsy and affective disorder. Id. The ALJ found Plaintiff's impairments of sleep apnea and respiratory disorder were non-severe. Id.

         At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“The Listing). Tr. 17.

         The ALJ found that Plaintiff had the RFC to:

perform a full range of work at all exertional levels but with the following non exertional limitations. The claimant can occasionally climb ladders, ropes, or scaffolds. He can tolerate occasional exposure to workplace hazards, such as unprotected heights and exposed moving machinery. The claimant can frequently perform simple, routine tasks and occasionally perform tasks that are more complex. He can tolerate occasional contact with the general public.

         Tr. 18.

         At step five, the ALJ found that Plaintiff could perform his past relevant work as a landscape laborer. Tr. 22. Alternatively, based on the testimony of the VE, the ALJ found that Plaintiff could perform work as a cleaner (commercial or industrial), sweeper cleaner (industrial), or dishwasher, all of which exist in significant numbers in the national economy. Tr. 24.

         Discussion

         Plaintiff argues the ALJ erred by: (1) improperly discrediting his subjective symptom testimony; (2) improperly rejecting medical opinion evidence; and ...


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