United States District Court, D. Oregon, Eugene Division
WILBORN Wilborn Law Office, P.C. Attorney for Plaintiff
J. WILLIAMS United States Attorney RENATA GOWIE Assistant
United States Attorney District of Oregon
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
(“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.
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.
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.
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).
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).
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
argues the ALJ erred by: (1) improperly discrediting his
subjective symptom testimony; (2) improperly rejecting
medical opinion evidence; and ...