Herman v. Berryhill
| Decision Date | 24 April 2017 |
| Docket Number | No. 6:15-cv-02334-HZ,6:15-cv-02334-HZ |
| Parties | TONYA A. HERMAN, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Oregon |
Richard F. McGinty
McGinty & Belcher, Attorneys
P.O. Box 12806
Salem, OR 97309
Attorney for Plaintiff
United States Attorney
Janice E. Hebert
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97201
Thomas M. Elsberry
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant
Plaintiff Tonya Herman brings this action for judicial review of the Commissioner's final decision denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act and for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). The Court AFFIRMS the Commissioner's decision.
Plaintiff was born in 1981 and was twenty-seven years old on the alleged disability onset date. Tr. 25, 40.1 She completed the eighth grade and has not earned a GED. Tr. 42. Plaintiff has past relevant work experience as a cashier and window assembler. Tr. 25. She applied for DIB and SSI benefits on April 12, 2012. Tr. 206, 210. The Commissioner initially denied her application and denied it again on reconsideration. Tr. 141, 145-46. An administrative hearing was held on April 29, 2014, before Administrative Law Judge ("ALJ") Jo Hoenninger. Tr. 34. On May 22, 2014, ALJ Hoenninger issued a written opinion denying Plaintiff's application. Tr. 12-26. Plaintiff's request for review of the decision was denied by the Appeals Counsel on October 16, 2015, making the ALJ's opinion the Commissioner's final decision that Plaintiff now challenges in this Court. Tr. 1-3.
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A claimant is disabled if 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). Disability claims are evaluated according to a five-step procedure. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.
At the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.
At step three, the Commissioner determines whether claimant's impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity ("RFC") to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets its burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
At step one, the ALJ found that Plaintiff met the insured status requirements through the relevant time period and had not engaged in substantial gainful activity since October 31, 2008. Tr. 14.
At step two, the ALJ found that Plaintiff had the following severe impairments: "mild spondylosis; anxiety without agoraphobia; and bipolar." Id. The ALJ concluded that a number of other conditions were non-severe, including: medullary sponge kidneys, diabetes mellitus, a minimal obstructive lung defect, gene mutation, varicose veins, and joint pain. Tr. 14-15.
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments which met or equaled the severity of one of the listed impairments. Tr. 15.
The ALJ found that Plaintiff had the following RFC:
[Plaintiff] has the [RFC] to perform light work . . . except: [Plaintiff] can lift, carry, push and pull no more than 20 pounds occasionally and 10 pounds frequently. She can stand and walk six hours out of an eight-hour day and can sit for six hours out of an eight-hour day. The claimant can understand and remember simple instructions and has sufficient concentration, persistence and pace to complete simple, routine work for a normal workday and workweek. She can have occasional, brief, face-to-face contact with the general public and with coworkers. The claimant would have no difficulties working with supervisors.
Tr. 17. At step four, the ALJ found that Plaintiff could not perform any past relevant work. Tr. 25.
At step five, the ALJ found that, given Plaintiff's age, education, work experience, and RFC, that there were jobs that existed in significant numbers in the national economy that shecould perform, including: motel cleaner, mail sorter, and packing line worker. Tr. 25-26. Accordingly, the ALJ concluded that Plaintiff was not disabled. Tr. 26.
A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). "Substantial evidence means 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." Id. (internal quotation marks omitted). Courts consider the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) () (internal quotation marks omitted).
Plaintiff argues that the ALJ erred by: (1) failing to show that there was work in the national economy that Plaintiff could perform; (2) improperly finding that Plaintiff's symptom testimony was not credible; (3) improperly assessing the opinion of examining provider Dr. Jill Spendal; and (4) improperly rejecting the testimony of lay witness Gloria Herman, Plaintiff's grandmother. Additionally, Plaintiff argues that the opinion of Dr. David Freed, submitted to the Appeals Council after the ALJ's written opinion, was consistent with Dr. Spendal's opinion and showed that the ALJ's decision was not based on substantial evidence.
Plaintiff argues that she could not perform two of the three jobs that the ALJ found she could perform and that the remaining job, motel cleaner, could not by itself satisfy the ALJ's burden at step five. Defendant concedes that Plaintiff could not perform the jobs of mail sorter or packaging line worker because they required higher levels of reasoning than what Plaintiff's RFC included. Notwithstanding that concession, Defendant maintains that motel cleaner jobs exist in significant numbers in the national economy sufficient to support the ALJ's step five findings.
Plaintiff cites to Lounsburry v. Barnhart to support the position that a single occupation cannot constitute the "significant range of work" required at step five. 464 F.3d 944, 950 (9th Cir. 2006), amended on other grounds, 468 F.3d 1111 (9th Cir. 2006). Lounsburry is distinguishable because it dealt with whether a claimant of an advanced age had skills that were readily transferable to a significant range of work under Rules 202.07 and 202.00(c). Id. at 1116-17. Those rules, which contain the "significant range of work" requirement, do not apply in this case because Plaintiff is not of an advanced age. Plaintiff, by contrast, was twenty-seven years old at her alleged disability onset date. The question at step five is not whether she had skills that were transferable to a significant range of work; rather, it is whether a significant number of jobs exist in the national economy that she could perform. The VE established that 223,165 motel cleaner jobs existed nationally and 2,826 jobs existed in Oregon. Tr. 26, 72-73. Those are "significant numbers" sufficient to carry the ALJ's burden at step five. See e.g., Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995).
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Plaintiff alleged that she suffered from joint pain, osteoarthritis, degenerative disc disease, medullary sponge kidney disorder, panic disorder, agoraphobia, posttraumatic stress disorder, and bipolar disorder. Tr. 237. The ALJ considered Plaintiff's symptom testimony and found that her "activities of daily living, work history and the overall medical record suggests that claimant is not totally...
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