United States District Court, D. Oregon, Portland Division
R. J. Porter JP Law PC Attorneys for Plaintiff
Williams United States Attorney Renata Gowie Assistant United
Ta Lu Special Assistant United States Attorney Attorneys for
OPINION & ORDER
A HERNÁNDEZ United States District Judge.
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
applied for DIB on April 7, 2016, alleging a disability onset
date of March 5, 2015. Tr. 174. 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.
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.
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
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.
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.
one, the ALJ found Plaintiff had not engaged in substantial
gainful activity since March 5, 2015, the alleged onset date.
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.
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.
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
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
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.
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
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 ...