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Tyrone J. v. Berryhill

United States District Court, D. Oregon

June 4, 2019

Tyrone J., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE.

         Plaintiff Tyrone J. brings this action for judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         The issues before this Court are whether the Administrative Law Judge (“ALJ”): (1) erred in finding that Plaintiff's right hip osteoarthritis was “non-severe”; and (2) improperly relied on the vocational expert's (“VE”) testimony. Because there is substantial evidence in the record to support the ALJ's findings and errors, if any, were harmless, the Commissioner's decision is AFFIRMED.

         PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiff applied for DIB and SSI on September 25, 2014, alleging disability since August 18, 2014. Tr. 173, 175. Both claims were denied initially and upon reconsideration. Tr. 113, 118, 126, 129. Plaintiff timely requested a hearing before an ALJ and appeared before the Honorable Rudolph Murgo on July 28, 2016. Tr. 19, 37. ALJ Murgo denied Plaintiff's claim by a written decision dated September 22, 2016. Tr. 16-31. Plaintiff sought review from the Appeals Council and was denied on September 22, 2016, rendering the ALJ's decision final. Tr. 1. Plaintiff now seeks judicial review of the ALJ's decision.

         Plaintiff was 46 years old at the time of his alleged disability onset and 49 at the time of his hearing. See tr. 173. Plaintiff has a GED and worked as a material handler, warehouseman, and forklift driver. Tr. 67, 210. Plaintiff alleges disability due to hip problems, heart problems, and diabetes. Tr. 209.

         STANDARD OF REVIEW

         The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence is ‘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.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, the court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989) (citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986)). “‘If the evidence can reasonably support either affirming or reversing,' the reviewing court ‘may not substitute its judgment' for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).

         DISCUSSION

         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden of proof rests on the claimant for steps one through four, and on the Commissioner for step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step five, the Commissioner's burden is to demonstrate that the claimant can make an adjustment to other work existing in significant numbers in the national economy after considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is considered disabled. Id.

         I. Plaintiff's Right Hip Osteoarthritis

         Plaintiff argues that the ALJ erred in finding that his right hip osteoarthritis was non-severe. Pl.'s Br. 5, ECF No. 22. Plaintiff argues that it “significantly limits his ability to do basic work activities such as standing and walking” and that the ALJ erred in failing to consider its effect. Id. Defendant disagrees but argues that any error at step two would be harmless because the ALJ found in Plaintiff's favor at step two and considered limitations resulting from his right hip impairment at later steps. Def.'s Br. 4-7, ECF No. 23.

         At step two, the ALJ must assess whether the claimant's impairment or combination of impairments is severe.[2] Tackett, 180 F.3d at 1098; see 20 C.F.R. § 404.1520(c). If not, the claimant is not disabled. Id. If so, the ALJ identifies the severe impairment(s) then continues to step three. Id. In determining the claimant's RFC at later steps, the ALJ must consider the “total limiting effects” of all of the medically determinable impairments, both “severe” and “non-severe, ” including the effect of pain. 20 C.F.R. §§ 404.1545(e), 416.945(e); see Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). Where an ALJ errs in omitting a severe impairment at step two, the error is harmless so long as the ALJ considers all of the claimant's functional limitations at subsequent steps (including those caused by the omitted severe impairment). Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

         Here, the ALJ found that Plaintiff had one severe impairment-“degenerative joint disease of left hip, status post hip replacement”-and only moderate osteoarthritis of the right hip. Tr. 24. Substantial evidence exists in the record to support the ALJ's finding that Plaintiff's right hip osteoarthritis was non-severe. Even if the ALJ erred, such error would be harmless because the ...


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