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Joseph O. v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

September 3, 2019

JOSEPH O., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE

         Joseph O. ("Plaintiff) seeks judicial review of the final decision of the Commissioner of the Social Security Administrations ("Commissioner") denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"). For the reasons below, the Commissioner's decision should be REVERSED and this case should be REMANDED for further proceedings.

         BACKGROUND

         Born in October 1983, Plaintiff was thirty-six old on the amended alleged onset date. Tr. 18, 36, 170, 1547-48. Plaintiff completed police academy training in 2012; and, at the time of his hearing, he was taking online college courses. Tr. 227, 294, 346, 355, 1549-51. He is a United States Army veteran and has past work experience as a communications technician and panel assembler. Tr. 1571. Plaintiff alleged disability due to post-concussion syndrome, post-traumatic stress disorder ("PTSD"), seizure disorder, migraines, cervical spine arthritis, unstable right knee, thoracolumbar sprain, and right knee pain. Tr. 226.

         Plaintiff applied for DIB on June 26, 2014, with an amended disability onset date of March 12, 2015, and a date last insured of Match 31, 2016. Tr. 18, 21, 170-76. Plaintiff timely requested an administrative hearing and appeared before an Administrative Law Judge ("ALJ") at a hearing on November 30, 2016. Tr. 118-19, 1544-78. Plaintiff testified at the hearing, as did a vocational expert. Tr. 1544-78. On May 15, 2017, the ALJ issued a decision finding Plaintiff not disabled under the Act. Tr. 18-37. After the Appeals Council denied his request for review, Plaintiff timely filed a complaint in this court. Tr. 1-6.

         DISABILITY 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 V 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 analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or equal" one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues.
a. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's "residual functional capacity" ("RFC"). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant work" with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Or. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Id.; see also 20 C.F.R. §§ 404.1566, 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.

         THE ALJ'S FINDINGS

         Applying the five-step analysis, the ALJ made the following findings:

1. Plaintiff had not engaged in substantial gainful activity from the period of March 12, 2015, the amended alleged onset date, through March 31, 2016, the date last insured. Tr.21.
2. Plaintiff has the following severe impairments: degenerative disc disease; seizure disorder; migraines; vertigo; right chronic knee strain; and obstructive sleep apnea; history of traumatic brain injury; depressive disorder; anxiety disorder; post-traumatic stress disorder ("PTSD"); and cognitive disorder. Id.
3. Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. Id.
a. Plaintiff has the RFC to perform medium work as defined in 20 C.F.R. § 404.1567(c), but with the following limitations: He could never crawl and climb ladders, ropes, or scaffolds. He could occasionally balance, stoop, kneel, crouch, and climb ramps or stairs. He had to avoid concentrated exposure to hazards. He could perform simple repetitive tasks consistent with unskilled work. He could never have public contact. He could have occasional superficial contact with co-workers. He could have occasional contact with supervisors. He could perform low-stress work, defined as work that required few decisions/changes. He could perform at a standard or ordinary pace, but not at a strict production rate pace in which he had no control over the speed of his work. Tr. 23-24.
4. Plaintiff is unable to perform any past relevant work. Tr. 36.
5. Considering Plaintiffs age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that the claimant can perform. Id.

         The ALJ therefore concluded Plaintiff was not disabled as defined by the Act. Tr. 37.

         STANDARD OF REVIEW

         The reviewing court must affirm the Commissioner's decision if it is based on the 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 Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); 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,' or more clearly stated, 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Bray v. Comm 'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner's alleged errors, this Court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." 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).

         Where the evidence before the ALJ is subject to more than one rational interpretation, the Commissioner's conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d at 1041). "However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Robbins v. Soc. Sec. Admin., 466 F, 3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a reviewing court "cannot affirm the [Commissioner's] decision on a ground that the [Administration] did not invoke in making its decision." Stout v. Comm 'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56.

         Even where findings are supported by substantial evidence, "the decision should be set aside if the proper legal standards were not applied in weighing the evidence and making the decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the case for a rehearing.

         DISCUSSION

         Plaintiff assigns error to seven portions of the ALJ's decision. First, he contends the ALJ erred by not finding certain impairments severe at step two. Second, Plaintiff asserts that the ALJ erroneously found his impairments did not satisfy a Listing at step three. Third, he contends the ALJ failed to supply legally sufficient reasons for rejecting Plaintiffs Veterans Affairs ("VA") disability rating. Fourth, he argues the ALJ improperly discounted his subjective symptom testimony. Fifth, Plaintiff argues the ALJ erroneously rejected the third-party statement from his wife. Sixth, Plaintiff asserts the ALJ erroneously rejected relevant medical opinion evidence. Seventh, and finally, he challenges the ALJ's step five finding.

         I. The ALJ properly evaluated Plaintiff's severe ...


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