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Heather R. v. Commissioner Social Security Administration

United States District Court, D. Oregon

November 21, 2019

HEATHER R., [1] Plaintiff,


          Michael J. McShane, United States District Judge

         Plaintiff Heather R. brings this action for judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for 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 by: (1) finding that Plaintiff's mental impairments did not meet certain listings; (2) failing to credit Plaintiff's testimony; (3) failing to incorporate Dr. Molly McKenna's, Ph.D., recommendations; (4) failing to credit lay witness statements; (5) crafting Plaintiff's residual functional capacity (“RFC”). Pl.'s Br. 15-33, ECF No. 10. Because there is substantial evidence in the record to support the ALJ's findings and any errors are harmless, the Commissioner's decision is AFFIRMED.


         Plaintiff applied for SSI on March 25, 2009, alleging disability since June 1, 2005. Tr. 21, 143-49. Her claim was denied initially and upon reconsideration. Tr. 21, 93-95. Plaintiff timely requested a hearing before an ALJ and appeared before the Honorable Rudolph Murgo on August 6, 2010. Tr. 96, 828-75. ALJ Murgo denied Plaintiff's claim by a written decision dated September 3, 2010. Tr. 18-30. Plaintiff sought review from the Appeals Council and was denied on December 22, 2011, rendering the ALJ's decision final. Tr. 1-6.

         Plaintiff sought judicial review in this Court in civil case number 3:12-cv-00342-MA. Pl.'s Br. 1. The Court affirmed the ALJ's decision on April 24, 2013. Tr. 599. Plaintiff appealed this Court's decision to the U.S. Court of Appeals for the Ninth Circuit, which remanded for additional proceedings. Tr. 600, 574-95. Plaintiff appeared before ALJ Murgo again on October 13, 2016 and August 24, 2017. Tr. 451-81, 432-50. ALJ Murgo denied Plaintiff's claim again by a written decision dated October 20, 2017. Tr. 406-31. The Appeals Council declined to assume jurisdiction on May 11, 2018, rendering the ALJ's decision on remand final. Tr. 399- 405. Plaintiff now seeks judicial review of the ALJ's decision on remand.

         Plaintiff was 18 years old at the time of her alleged disability onset and 31 at the time of her last hearing. See tr. 28, 143, 450. Plaintiff completed high school and has engaged in past relevant work as a cashier at a fast food restaurant, gas station attendant, and landscaper. Tr. 29, 421, 834, 838, 1185. Plaintiff alleges disability due to social phobia, fibromyalgia, and developmental, cognitive, and major depressive disorders. Pl.'s Br. 2.


         The reviewing court shall affirm the Commissioner's decision if it 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 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 uses 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 Mental Impairments

         Plaintiff argues that the ALJ erred by finding that Plaintiff's mental impairments did not equal listings 12.04 for depressive, bipolar, and related disorders or listing 12.06 for anxiety and obsessive-compulsive disorders. Pl.'s Br. 15-25. These listings describe impairments that are severe enough to be per se disabling. See Tackett, 180 F.3d at 1099. The plaintiff has the burden of proving that her impairments meet all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). If a claimant's impairment matches or is equivalent to a listed impairment, she is presumed unable to work and is awarded benefits without a determination of whether she can actually perform prior work or other work. Id. at 532. “Listed impairments are purposefully set at a high level of severity because ‘the listings were designed to operate as a presumption of disability that makes further inquiry unnecessary.'” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan, 493 U.S. at 532).

         To meet listing 12.04 or 12.06, an individual must satisfy the listing's paragraph A and B or A and C criteria. 20 C.F.R. Part 404, Subpt. P., App. 1, §§ 12.04 and 12.06.[2] Plaintiff argues that her combined impairments equal paragraphs A and C of each 12.04 and 12.06. Pl.'s Br. 19. To meet either listing's paragraph C criteria, an individual's mental disorder must be “serious and persistent, ” meaning medically documented over a period of at least two years, and there must be evidence of:

1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your ...

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