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Denise C. v. Commissioner of Social Security

United States District Court, D. Oregon

October 10, 2019

DENISE C., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION & ORDER

          McSHANE, DISTRICT JUDGE:

         Plaintiff Denise C. seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”). The decision of the Commissioner is based on proper legal standards and supported by substantial evidence and so the decision is AFFIRMED and this case is DISMISSED.

         BACKGROUND

         On February 6, 2014, Plaintiff filed a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income alleging disability beginning February 9, 2010. Tr. 13. The claims were denied initially and upon reconsideration. Id. At Plaintiff's request, a hearing was held before an administrative law judge (“ALJ”) on December 20, 2016. Id. On May 4, 2017, the ALJ issued a decision finding Plaintiff not disabled. Tr. 27. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1. This appeal followed.

         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'r, 648 F.3d 721, 724 (9th Cir. 2011).

The five-steps are: (1) Is the claimant presently working in a substantially gainful activity? (2) Is the claimant's impairment severe? (3) Does the impairment meet or equal one of a list of specific impairments described in the regulations? (4) Is the claimant able to perform any work that he or she has done in the past? and (5) Are there significant numbers of jobs in the national economy that the claimant can perform?

Id. at 724-25; see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Bustamante, 262 F.3d at 953. The Commissioner bears the burden of proof at step five. Id. at 953-54. 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.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). 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.

         THE ALJ'S FINDINGS

         The ALJ performed the sequential analysis. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date, February 9, 2010. Tr. 15. The ALJ determined Plaintiff had the following severe impairments: degenerative disc disease; right carpal tunnel system status post release; left knee medial meniscus tear status post repair; breast cancer; irritable bowel syndrome; anxiety; and somatoform disorder. Id. The ALJ determined Plaintiff's impairments did not meet or equal a listed impairment. Tr. 16.

         The ALJ determined Plaintiff had the RFC to perform a range of sedentary work, “except she is limited to low stress unskilled work due to her mental health issues.” Tr. 18.

         The ALJ noted Plaintiff was 40 years old on the alleged onset date and has at least a high school education and is able to communicate in English. Tr. 26. The ALJ found Plaintiff is unable to perform past relevant work. Id. Based on her RFC, the ALJ determined Plaintiff was able to perform “nearly all unskilled sedentary positions in the national economy.” Tr. 27. As a consequence, the ALJ determined Plaintiff was not disabled. Id.

         STANDARD OF REVIEW

         The 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. 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) (citation and internal quotation marks omitted). In reviewing the Commissioner's alleged errors, this 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).

         When the evidence before the ALJ is subject to more than one rational interpretation, courts must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, cannot affirm the Commissioner's decision on a ground that the agency did not invoke in making its decision. Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a 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 error is harmful normally falls upon the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

         DISCUSSION

         Plaintiff alleges the ALJ erred by (1) failing to include fibromyalgia among Plaintiff's severe impairments; (2) improperly discounting Plaintiff's subjective symptom testimony; and (3) improperly rejecting the “other” medical source opinion of Plaintiff's treating physician's assistant.

         I. ...


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