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Sandra, W. v. Berryhill

United States District Court, D. Oregon

July 17, 2019

SANDRA, W.[1], Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.

          George J. Wall, Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney, United States Attorney's Office, Michael Howard, Special Assistant United States Attorney, Office of General Counsel, Social Security Administration, Of Attorneys for Defendant.



         Plaintiff Sandra W. seeks judicial review of the final decision by the Social Security Commissioner (“Commissioner”) denying Plaintiff's application for Social Security Disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”) under 42 U.S.C. §§ 416 and 423. This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Because Plaintiff's date last insured was June 30, 2019, Plaintiff must establish disability on or before that date in order to be entitled to a period of disability and disability insurance benefits. After carefully reviewing the ALJ's decision and the evidence in the record, the Court affirms the decision of the ALJ.


         The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means “more than a mere scintilla but less than a preponderance.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

         Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.


         A. Plaintiff's Application

         Plaintiff was born on August 12, 1964 and was 49 years old at the alleged disability onset date. Plaintiff has at least a high school education, is able to communicate in English, and previously worked as a retail store manager and a salesperson. AR 35. Plaintiff previously filed for DIB on January 20, 2006. A determination that Plaintiff was not disabled, made on February 9, 2006, became administratively final when Plaintiff did not appeal that determination. AR 21. Plaintiff filed a second DIB application as well as an SSI application on December 18, 2007. Id. Both applications were denied on March 26, 2008 and became administratively final when Plaintiff did not appeal. Plaintiff filed a third application for DIB on July 25, 2011. Id. This application was also denied and, on appeal, an administrative law judge (“ALJ”) determined that Plaintiff was nod disabled in a written opinion on November 14, 2013. That decision became administratively final when Plaintiff did not appeal the ALJ's decision.

         Plaintiff filed her current application for DIB and SSI on October 3, 2014, alleging disability beginning November 15, 2013. The claims were denied initially on January 13, 2015 and upon reconsideration on July 23, 2015. Plaintiff filed a written request for a hearing before an ALJ. A hearing was held on March 29, 2017. Plaintiff testified and was represented by counsel. An impartial medical expert, Dr. Ronald Devere, MD and an impartial vocational expert, Dr. Robert Gaffney, also testified. On May 8, 2017, the ALJ issued a written decision denying Plaintiff's applications. AR 38. Plaintiff sought review by the Appeals Council, but the Appeals Council denied Plaintiff's request for review on April 4, 2018, making the ALJ's decision the final decision of the Commissioner. AR 1. Plaintiff seeks judicial review of that decision.

         B. The Sequential Analysis

         A claimant is disabled if he or she 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). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment “severe” under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the ...

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