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Jennifer A v. Saul

United States District Court, D. Oregon

September 27, 2019

JENNIFER A., [1]Plaintiff
ANDREW SAUL, Commissioner Social Security Administration Defendant


          Michael J. McShane United States District Judge

         Plaintiff brings this action for judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits (“DIB”). Tr. 536–65.[2] This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). Because the Commissioner’s decision is based on proper legal standards and supported by substantial evidence, the Commissioner’s decision is AFFIRMED.


         Plaintiff filed an initial application for DIB in November 2012. Tr. 183–89, 78. Plaintiff alleged a disability onset beginning April 10, 2012 due to lower back pain, shoulder and neck pain, learning disabilities, and a “tear in L4-5.” Id. The Administrative Law Judge (“ALJ”) assigned to the initial claim issued a decision denying Plaintiff benefits. Tr. 11–31. However, because the ALJ failed to consider certain evidence at the initial hearing the parties stipulated to a remand. Tr. 648– 49, 655–57.

         While waiting for the remand hearing, Plaintiff submitted a new application for benefits. Tr. 539, 722. A second ALJ consolidated the remanded case and the new application. Tr. 539. The remand hearing took place in November 2017. Tr. 566–90. On February 22, 2018, the ALJ denied Plaintiff’s claim for benefits. Tr. 536–65. This latest decision is now before the Court.


         The reviewing court shall affirm the Commissioner’s decision if the decision is based on proper legal standards and is supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm’r for 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)). When determining if substantial evidence exists, this Court reviews the entire administrative record, weighing both supporting and deterring evidence from the ALJ’s conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The ALJ may “reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir. 2015).

         The Commissioner’s findings are upheld if supported by inferences reasonably drawn from the record; if evidence exists to support more than one rational interpretation, the court must defer to the Commissioner’s decision. Batson, 359 F.3d at 1193; Aukland v. Massanari, 257 F.3d 1033, 1034–35 (9th Cir. 2000). A reviewing court, however, “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) (citation omitted). A court may not reverse an ALJ’s decision on account of a harmless error. Id. at 1055–56. “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). The ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Finally, the ALJ need not discuss all evidence presented, but must explain why significant probative evidence has been rejected. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“[I]n interpreting the evidence and the record, the ALJ does not need to discuss every piece of evidence.” (internal quotations and citations omitted)).


         A claimant is disabled if they are 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). The Social Security Administration (SSA) uses a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 416.920, 404.1520. The initial burden of proof rests upon the claimant to meet the first four steps. If claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner at step five. Id. At step five, the Commissioner’s burden is to demonstrate the claimant can make an adjustment to other work after considering the claimant’s residual functional capacity (“RFC”), age, education, and work experience. Id. If the reviewing agency determines that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not go onto the next step. Id.

         At step one, the ALJ found that Plaintiff was not engaged in substantially gainful activity. Tr. 542. At step two, the ALJ found Plaintiff suffered from severe impairments of degenerative disc disease of the spine, status post 2013 lumbar surgery, carpal tunnel syndrome status post right release, obstructive sleep apnea, morbid obesity, and headaches. Id. At step three, the ALJ found that none of Plaintiff’s impairments or combination of impairments met or medically equaled the criteria of a listing. Tr. 545–46.

         Prior to step four, the ALJ assessed Plaintiff’s RFC and found that Plaintiff could perform light work as defined in 20 CFR § 404.1567(b), so long as Plaintiff had the ability to sit and stand at will while remaining on task, was limited in weight occasionally carried to twenty pounds, and could only carry out simple routine and repetitive tasks. Tr. 546. At step four, the ALJ found that Plaintiff could not perform any past relevant work. Tr. 555. At step five, the ALJ determined Plaintiff could perform the jobs of photocopy machine operator, collator operator, and inserting machine operator, all jobs that exist in significant numbers in the economy. Tr. 555–56. The ALJ found Plaintiff not disabled. Tr. 556–57.

         Plaintiff argues the ALJ erred in three ways. First, that the ALJ incorrectly evaluated Plaintiff’s cognitive impairment by failing to consider it severe at step two. Pl’s Br. 7, ECF No. 13. Second, that the ALJ erred at step three by failing to find that Plaintiff’s current intellectual and adaptive functioning deficits, which began prior to age twenty-two, continue to this day. Id. at 12. Third, that the ALJ failed to provide specific, clear, and convincing reasons supported by substantial evidence in discounting Plaintiff’s subjective testimony. Id. at 17.

         I. Cognitive ...

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