Ortega v. Commissioner Social Security Administration
Filing
16
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter pursuant to sentence four of 42 U.S.C. § 405(g). IT IS SO ORDERED. See attached order for details. Signed on 11/15/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHRISTINE JANE O.,1
Plaintiff,
3:17-cv-01988-BR
OPINION AND ORDER
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MERRILL SCHNEIDER
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, OR 97293
(503) 255-9092
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1
In the interest of privacy and pursuant to the
recommendation of the Judicial Conference of the United States,
this Opinion and Order uses only the first name and the initial
of the last name of the nongovernmental parties. The same
designation will be used to identify nongovernmental parties'
family members if named in this case.
1 - OPINION AND ORDER
MICHAEL W. PILE
Acting Regional Chief Counsel
RYAN LU
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2034
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Christine Jane O. seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (SSA) in which the Commissioner denied Plaintiff's
applications for Disability Insurance Benefits (DIB) under Title
II of the Social Security Act and Supplemental Security Income
(SSI) under Title XVI of the Social Security Act.
This Court has
jurisdiction to review the Commissioner's final decision pursuant
to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.
ADMINISTRATIVE HISTORY
Plaintiff protectively filed her applications for DIB and
SSI benefits on June 5, 2014.
Tr. 18.2
Plaintiff alleges a
disability onset date of October 1, 2007.
2
Tr. 1.
Plaintiff’s
Citations to the official transcript of record (#11) filed
by the Commissioner on June 7, 2018, are referred to as "Tr."
2 - OPINION AND ORDER
applications were denied initially and on reconsideration.
An
Administrative Law Judge (ALJ) held a hearing on October 19,
2016.
Tr. 18, 35-74.
testified.
Plaintiff and a vocational expert (VE)
Plaintiff was represented by an attorney at the
hearing.
On December 8, 2016, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 18-30.
On February 10, 2017, Plaintiff
requested review by the Appeals Council.
Tr. 186.
On
October 11, 2017, the Appeals Council denied Plaintiff’s request
to review the ALJ’s decision, and the ALJ’s decision became the
final decision of the Commissioner.
Tr. 1-3. See Sims v. Apfel,
530 U.S. 103, 106-07 (2000).
On December 13, 2017, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner’s decision.
BACKGROUND
Plaintiff was born on October 30, 1962.
Tr. 27.
Plaintiff
was forty-four years old on her alleged disability onset date.
Tr. 27.
Plaintiff attended school through the ninth grade.
Tr. 27, 41.
The ALJ found Plaintiff has past relevant work
experience as a delivery driver.
Tr. 27.
Plaintiff alleges disability due to chronic obstructive
pulmonary disease (COPD), diabetes, asthma, “back problems,”
3 - OPINION AND ORDER
obesity, bronchitis, “polyps in colon,” diverticulitis,
arthritis, and bursitis.
Tr. 77-78, 226.
Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 24-26.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate her
inability “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.”
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
4 - OPINION AND ORDER
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
It is more than a mere scintilla [of evidence]
but less than a preponderance.
Id. (citing Valentine, 574 F.3d
at 690).
The ALJ is responsible for evaluating a claimant’s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
Cir. 2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commis-
5 - OPINION AND ORDER
sioner determines the claimant is engaged in substantial
gainful activity (SGA).
416.920(a)(4)(I).
20 C.F.R. §§ 404.1520(a)(4)(I),
See also Keyser v. Comm’r of Soc. Sec., 648
F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii), 416.920(a)(4)(ii).
20 C.F.R. §§ 404.1509,
See also Keyser, 648 F.3d
at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.
20 C.F.R.
See also Keyser, 648
The criteria for the listed impairments, known as
Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, he must
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.
20 C.F.R.
See also Social Security Ruling
“A ‘regular and continuing basis’ means 8 hours a
6 - OPINION AND ORDER
day, for 5 days a week, or an equivalent schedule.”
at *1.
SSR 96-8p,
In other words, the Social Security Act does not require
complete incapacity to be disabled.
Taylor v. Comm’r of Soc.
Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
416.920(a)(4)(iv).
20 C.F.R. §§ 404.1520(a)(4)(iv),
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).
20 C.F.R. §§ 404.1520(a)(4)(v),
See also Keyser, 648 F.3d at 724-25.
Here the
burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
Cir. 2010).
The Commissioner may satisfy this burden through the
testimony of a VE or by reference to the Medical-Vocational
Guidelines (or the grids) set forth in the regulations at 20
C.F.R. part 404, subpart P, appendix 2.
If the Commissioner
meets this burden, the claimant is not disabled.
§ 404.1520(g)(1), 416.920(g)(1).
7 - OPINION AND ORDER
20 C.F.R.
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since October 1, 2007, Plaintiff’s
alleged disability onset date.
Tr. 20.
At Step Two the ALJ found Plaintiff has the severe
impairments of COPD, morbid obesity, sleep apnea, diabetes, and
peripheral neuropathy.
Tr. 20.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.
Tr. 21.
The ALJ found Plaintiff had the RFC to
perform light work from October 1, 2007, to March 1, 2015.
Tr. 22-26.
The ALJ also found Plaintiff had the RFC to perform
sedentary work beginning March 1, 2015, through December 8, 2016,
the date of his decision.
Tr. 28-29.
For each period the ALJ
found Plaintiff can only occasionally climb ramps and stairs, can
frequently stoop, and can only occasionally crouch.
The ALJ also
found Plaintiff cannot kneel or crawl; cannot climb ladders,
ropes, and scaffolds; and should avoid concentrated exposure to
extreme cold, heat, fumes, orders, dusts, and gases.
The ALJ
found Plaintiff should avoid work hazards, such as machinery and
heights.
Tr. 22.
At Step Four the ALJ concluded Plaintiff is able to perform
her past relevant work as a delivery driver as she performed it.
8 - OPINION AND ORDER
Tr. 27-28, 29-30.
In addition, the ALJ made an alternative
finding at Step Five that Plaintiff can perform other occupations
such as small-products assembler, electronics-accessories
assembler, and plumbing-hardware assembler that exist in
significant numbers in the national economy.
Tr. 28, 30.
Accordingly, the ALJ found Plaintiff is not disabled.
Tr. 27.
DISCUSSION
Plaintiff contends the ALJ’s determination at Step Four that
Plaintiff could perform her past relevant work is not supported
by substantial evidence in the record.
In response the
Commissioner contends the record supports the ALJ’s
determination.
Plaintiff stipulates to the ALJ’s evaluation of Plaintiff’s
RFC except for the ALJ’s finding that Plaintiff can perform her
past work as a delivery driver as she “actually performed it.”
I.
Step Four
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
416.920(a)(4)(iv).
20 C.F.R. §§ 404.1520(a)(4)(iv),
See also Keyser v. Comm’r of Soc. Sec.
Admin., 648 F.3d 721, 724 (9th Cir. 2011).
“At step four of the sequential analysis, the claimant has
the burden to prove that [she] cannot perform [her] prior work
9 - OPINION AND ORDER
either as actually performed or as generally performed in the
national economy.”
Carmickle v. Comm’r Soc. Sec. Admin., 533
F.3d 1155, 1166 (9th Cir. 2008).
"Although the burden of proof lies with the claimant at step
four, the ALJ still has a duty to make the requisite factual
findings to support his conclusion."
F.3d 840, 844 (9th Cir. 2001).
Pinto v. Massanari, 249
Accordingly, the ALJ must make
the requisite factual findings supported by substantial evidence
in the record before concluding that the claimant is "able to
perform:
1.
The actual functional demands of the job duties of
a particular past relevant job; or 2.
The functional demands and
job duties of the occupation as generally required by employers
throughout the national economy."
Id. at 845.
"This requires
specific findings as to the claimant's residual functional
capacity, the physical and mental demands of the past relevant
work, and the relation of the residual functional capacity to the
past work."
Id.
Social Security Regulations identify two sources of
information that may be used to define a claimant's past relevant
work “as actually performed”:
a properly completed vocational
report (SSR 82–61) and the claimant's own testimony (SSR 82–41).
Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001).
“The
claimant is the primary source for vocational documentation, and
statements by the claimant regarding past work are generally
10 - OPINION AND ORDER
sufficient for determining the skill level; exertional demands
and nonexertional demands of such work.”
SSR 82-61.
The Ninth
Circuit has also recognized a claimant’s own testimony is “highly
probative” regarding her ability to perform the demands of her
past relevant work.
Cir. 1993).
Matthews v. Shalala, 10 F.3d 678, 681 (9th
See also Molina v. Berryhill, 734 F. App’x. 492, 495
(9th Cir. 2018).
II.
Analysis
As noted, the ALJ found Plaintiff could perform light work
from October 1, 2007, to March 1, 2015, and that Plaintiff could
perform sedentary work from March 1, 2015, to December 8, 2016.
The ALJ also found Plaintiff was capable of performing her past
relevant work as a delivery driver at a sedentary level as she
actually performed it.
At the hearing Plaintiff testified the delivery-driver job
involved taking rental cars from the airport to the auction or
“wherever they needed to go.”
Tr. 67.
When asked how much of
her work day was spent driving compared to delivering and walking
to the vehicles, Plaintiff testified:
Well, driving is probably on and off all day, but when
we get back, we drive -- we go to our lot, get a car,
you walk probably maybe 10 minutes -- 5/10 minutes.
You have to stand and wait around for the driver to
even show up to pick you up and you take the cars to
the auction, come back, walk to the next line of cars,
and get in the next car.
Tr. 72.
Plaintiff indicated in her Work History Report dated
11 - OPINION AND ORDER
July 26, 2014, that the delivery-driver job did not involve any
lifting or carrying, but she had to walk three hours per day, to
stand five hours per day, and to sit three hours per day.
Tr. 238.
Plaintiff also testified she “probably could” do the
job, “[a]s long as there ain’t a lot of walking to get . . . to
the vehicle.”
Tr. 68.
The ALJ characterized the delivery-driver job as “mostly a
sit-down job.”
Tr. 66.
When the ALJ asked Plaintiff if she
could perform that job today, Plaintiff replied, “Yeah, something
like that I could probably do.”
Tr. 67.
The VE testified the Dictionary of Occupational Titles (DOT)
defined Plaintiff’s past relevant work as a delivery driver as
medium work, and the VE stated Plaintiff, therefore, could not
perform the job as defined.
Tr. 54.
The VE, however, also
testified Plaintiff could perform the job at a sedentary level
based on Plaintiff’s description of the job as she actually
performed it.
Tr. 56-57.
Accordingly, the VE’s testimony
resolved the apparent conflict between the DOT and the ALJ’s
evaluation of Plaintiff’s RFC for sedentary work.
In addition,
the Court finds the VE’s testimony was reasonable and provided a
basis for the ALJ to rely on that testimony rather than the DOT
when the ALJ was determining whether Plaintiff could perform her
past relevant work.
See Tommasetti v. Astrue, 533, F.3d 1035,
1042 (9th Cir. 2008).
12 - OPINION AND ORDER
On this record the Court concludes the ALJ did not err
because the ALJ’s decision was supported by substantial evidence
in the record.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter pursuant to sentence four
of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
DATED this 15th day of November, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
13 - OPINION AND ORDER
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