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Sherry S. v. Commissioner Social Security Administration

United States District Court, D. Oregon

October 15, 2019

SHERRY S., [1] Plaintiff,


          Michael J. McShane United States District Judge.

         Plaintiff Sherry S. brings this action for judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         Plaintiff alleges that the Administrative Law Judge (“ALJ”) erred in: (1) finding that Plaintiff's knee disorder was “non-severe”; (2) failing to credit Plaintiff's testimony as true; (3) failing to credit the statements of Plaintiff's brother; (4) crafting Plaintiff's residual functional capacity (“RFC”); and (5) determining substantial gainful activity (“SGA”). Because there is substantial evidence in the record to support the ALJ's findings and errors, if any, were harmless, the Commissioner's decision is AFFIRMED.


         Plaintiff applied for DIB and SSI on July 14, 2015, alleging disability since June 15, 2015. Tr. 213-23, 36. Both claims were denied initially and upon reconsideration. Tr. 92-109. Plaintiff timely requested a hearing before an ALJ and appeared before the Honorable Linda Thomasson on June 9, 2017. Tr. 159-60, 55-91. ALJ Thomasson denied Plaintiff's claim by a written decision dated August 28, 2017. Tr. 33-49. Plaintiff sought review from the Appeals Council and was denied on July 17, 2018, rendering the ALJ's decision final. Tr. 207-12, 1-7. Plaintiff now seeks judicial review of the ALJ's decision.

         Plaintiff was 36 years old at the time of her alleged disability onset and 38 at the time of her hearing. See tr. 61, 36, 55. Plaintiff has a GED and an associate's degree in business. She has engaged in past work doing data input and research and she has clerked at a community college and a hotel., . Tr. 28, 47, 61-62, 38, 67-68, 251. Plaintiff alleges disability due to fibromyalgia, idiopathic hypersomnia, polyarthralgia, edema, and nerve damage. Tr. 136, 250.


         The reviewing court shall 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. See 42 U.S.C. § 405(g); Batson v. Comm'r of 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)). To determine whether substantial evidence exists, the court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989) (citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986)). “‘If the evidence can reasonably support either affirming or reversing,' the reviewing court ‘may not substitute its judgment' for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).


         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden of proof rests on the claimant for steps one through four, and on the Commissioner for step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step five, the Commissioner's burden is to demonstrate that the claimant can make an adjustment to other work existing in significant numbers in the national economy after considering the claimant's RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is considered disabled. Id.

         I. Plaintiff's Knee Disorder

         Plaintiff argues that the ALJ erred both by finding that Plaintiff's knee disorder was non-severe and by minimizing the impact of the knee disorder on Plaintiff's ability to work, especially when combined with the effects of her obesity. Pl.'s Br. 5, ECF No. 10.

         At step two, the ALJ must assess whether the claimant's impairment or combination of impairments is severe. Tackett, 180 F.3d at 1098; see 20 C.F.R. § 404.1520(c). If not, the claimant is not disabled. Id. If so, the ALJ identifies the severe impairment(s) then continues to step three. Id. A severe impairment is an “impairment or combination of impairments which significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). “An impairment is not severe if it is merely a ‘slight abnormality (or combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities.'” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Social Security Ruling 96-3p, 1996 WL 374181). In determining the claimant's RFC at later steps, the ALJ must consider the “total limiting effects” of all of the medically determinable impairments, both “severe” and “non-severe, ” including the effect of pain. 20 C.F.R. §§ 404.1545(e), 416.945(e); see Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). Where an ALJ errs in omitting a severe impairment at step two, the error is harmless so long as the ALJ considers all of the claimant's functional limitations at subsequent steps (including those caused by the omitted severe impairment). Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

         Here, the ALJ found that Plaintiff's knee disorder was non-severe but considered it in conjunction with her severe impairments. Tr. 39. Substantial evidence exists in the record to support the ALJ's finding. Even if the ALJ erred, such error would be harmless because the ALJ found in Plaintiff's favor at step two and considered her knee disorder in determining her RFC in later steps. The ALJ found that Plaintiff complained of bilateral knee pain, especially in her right knee, during activity in March 2016. Tr. 39. (citing tr. 556). There was, however, no sign of inflammatory arthritis and her symptoms were most consistent with overuse or mechanic arthritis. Id. June 2016 x-rays were unremarkable. Tr. 39 (citing tr. 539, 546-47). In August 2016, she reported loss of balance due to her left knee giving way and was referred to a magnetic resonance imaging scan (“MRI”). Tr. 39 (citing tr. 570). Her left knee was tender along the anterior joint line but had ...

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