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Kirk L. v. Berryhill

United States District Court, D. Oregon

August 7, 2019

KIRK L., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Jolie A. Russo United States Magistrate Judge.

         Plaintiff Kirk L. seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying disability insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”). For the reasons set forth below, the decision of the Commissioner is AFFIRMED.


         Born in December 1970, plaintiff applied for DIB on January 19, 2015, alleging disability beginning December 29, 2014. Tr. 66, 78. Plaintiff alleged disability due to general convulsive epilepsy and malignant neoplasm of the brain. Id. Plaintiff completed high school and has past work experience as an auto detailer, lot attendant, and watch guard/cook. Tr. 31.

         Plaintiff's application was denied initially and upon reconsideration. Tr. 77, 91. An Administrative Law Judge (“ALJ”) held a hearing on June 27, 2017 and issued a decision finding plaintiff not disabled on September 19, 2017. Tr. 20-33, 39-65. The Appeals Council denied review on June 29, 2018, making the ALJ's decision the final decision of the Commissioner. Tr. 1-6. This appeal followed.


         The ALJ performed the five step sequential analysis, for determining whether a person is disabled. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since December 29, 2014, and he met the insured status requirements of the Act through December 31, 2018. Tr. 22-23. At step two, the ALJ determined the following impairments were medically determinable and severe: “history of left frontal grade II oligodendroglioma status post surgery with no recurrence of cancer, history of seizures status post controlled with medications, history of partial seizures affecting the hands status post controlled with medications, history of migraines, and obesity.” Tr. 23. At step three, the ALJ determined plaintiff's impairments, neither individually nor in combination, met or equaled the requirements of a listed impairment. Id.

         Because the ALJ did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected his ability to work. The ALJ resolved plaintiff had the residual functional capacity (“RFC”) to perform sedentary work with the following limitations:

[Plaintiff] can lift, carry, push, and/or pull ten pounds occasionally and less than ten pounds frequently. He can stand and/or walk two hours out of an eight-hour workday and sit six or more hours in an eight-hour workday. The claimant can occasionally climb ramps and stairs, but never climb ladders, ropes, and scaffolds. He can have no exposure whatsoever to hazards, such as dangerous machinery and unprotected heights.

Tr. 24.

         At step four, the ALJ determined plaintiff could not perform any of his past relevant work. Tr. 31. At step five, the ALJ concluded that plaintiff was capable of performing jobs in the national economy including document preparer, telemarketer, and appointment clerk. Tr. 32. The ALJ therefore concluded that plaintiff was not disabled from December 29, 2014 through the decision date. Tr. 32-33.


         A district court must 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. 42 U.S.C. § 405(g); Batson v. Comm'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence “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) (internal citation omitted). In reviewing the Commissioner's alleged errors, a court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         When the evidence before the ALJ is subject to more than one rational interpretation, a court must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (internal citation omitted). The reviewing court, however, cannot affirm the Commissioner's decision on grounds the agency did not invoke in making its decision. Stout v. Comm'r,454 F.3d 1050, 1054 (9th Cir. 2006). Finally, the court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56. “[T]he burden of showing that an ...

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