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Dustin L. v. Berryhill

United States District Court, D. Oregon, Portland Division

May 21, 2019

DUSTIN L., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          Lisa R. J. Porter JP Law PC Attorneys for Plaintiff

          Billy Williams United States Attorney Renata Gowie Assistant United States Attorney

          Ryan Ta Lu Special Assistant United States Attorney Attorneys for Defendant

          OPINION & ORDER

          MARCO A HERNÁNDEZ United States District Judge.

         Plaintiff Dustin L. brings this action for judicial review of the Commissioner's final decision denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). The issues before the Court are whether the Administrative Law Judge (“ALJ”) erred by: (1) finding at step two that Plaintiff's mental impairments were not severe; (2) discrediting Plaintiff's testimony; (3) discrediting the opinion of Kimberly H. Schlievert, Ph.D., an examining psychologist; and (4) discrediting the lay-witness testimony of Craig Fleck, Ronalee McCarthy, and Wendy Hoag. Because of the above alleged errors, Plaintiff also contends the ALJ's assessment of Plaintiff's residual functional capacity (“RFC”) was also erroneous. I affirm the Commissioner's decision.

         BACKGROUND

         Plaintiff applied for DIB on April 7, 2016, alleging a disability onset date of March 5, 2015. Tr. 174.[2] Plaintiff's application was denied initially and upon reconsideration. Plaintiff's administrative hearing was held on August 22, 2017, before ALJ Steven A. De Monbreum. Tr. 44. The ALJ denied Plaintiff's claim in a written decision issued on October 27, 2017. Tr. 21-39. The Appeals Council denied review, rendering the ALJ's decision final. Tr. 1-3.

         SEQUENTIAL DISABILITY ANALYSIS

         A claimant is disabled if he 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). Disability claims are evaluated according to a five-step procedure. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.

         At the first step, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(b). At step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c). If not, the claimant is not disabled.

         At step three, the Commissioner determines whether claimant's impairments, 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 141; 20 C.F.R. § 404.1520(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         At step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20 C.F.R. § 404.1520(e). If the claimant can, the claimant is not disabled. If the claimant 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. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(e) & (f). If the Commissioner meets its burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. § 404.1566.

         THE ALJ'S DECISION

         At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since March 5, 2015, the alleged onset date. Tr. 24.

         At step two, the ALJ determined Plaintiff had the following severe impairments: obesity, “multiple foot surgeries, ” peripheral neuropathy, plantar fasciitis, osteoarthritis, and degenerative disc disease of the cervical spine with left upper extremity radiculopathy. Tr. 24-25.

         At step three, the ALJ found Plaintiff's impairments or combination of impairments did not meet or equal the severity of one of the listed impairments. Tr. 25-26.

         Before step four, the ALJ determined Plaintiff had the RFC to perform work at the light exertional level, except that:

[Plaintiff] can stand or walk only four hours total in an eight hour workday; he can sit for six or more hours total a day; he can occasionally climb ropes or ladders, and can frequently balance, kneel, crouch, crawl, or stoop, bend, and climb ramps or stairs; he can have no more than occasional exposure to workplace hazards such a dangerous machinery or unprotected heights.

Tr. 26-37.

         At step four, the ALJ determined Plaintiff is capable of performing his past relevant work as a “grain weigher.” Tr. 37. Accordingly, the ALJ found Plaintiff not disabled on that basis.

         In the alternative, at step five the ALJ concluded that other jobs exist in the national economy that Plaintiff can perform including storage facility clerk, garment sorter, and laundry folder. Tr. 38. Even if Plaintiff was additionally limited to occasional overhead reaching with the left upper extremity, the ALJ also found Plaintiff could perform other jobs that exist in the national economy including motel desk clerk, call out operator, election clerk, and telemarketer. Tr. 38-39. Accordingly, the ALJ also concluded Plaintiff was not disabled on these bases. Tr. 39.

         STANDARD OF REVIEW

         A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). Courts consider the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“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.”) (internal quotation marks omitted).

         DISCUSSION

         Plaintiff contends the ALJ's decision was not supported by substantial evidence and contains legal errors. In particular, Plaintiff argues the ALJ made the following errors. First, the ALJ improperly found at step two that Plaintiff's mental conditions did not qualify as “severe” impairments. Second, the ALJ erroneously discredited Plaintiff's testimony. Third, the ALJ improperly discredited the opinion of Dr. Schlievert, a Veterans Administration (“VA”) examining psychologist. Fourth, the ALJ erroneously discredited the lay testimony of Craig Fleck, Ronalee McCarthy, and Wendy Hoag. As a result of these errors, Plaintiff contends the ALJ's assessment of ...


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