Culver v. Berryhill

AMANDA R. CULVER, Plaintiff, v. NANCY A. BERRYHILL,¹ Acting Commissioner,Social Security Administration, Defendant.

6:16-cv-00074-BR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

May 15, 2017

OPINION AND ORDER

KATHERINE EITENMILLER

MARK A. MANNING

Harder Wells Baron & Manning, PC

474 Willamette Street

Eugene, OR 97401

(541) 686-1969

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1011

DAVID MORADO

Regional Chief Counsel

MICHAEL S. HOWARD

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/S 221A

Seattle, WA 98104-7075

(206) 615-2539

Attorneys for Defendant

BROWN, Judge.

Plaintiff Amanda R. Culver seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's applications for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) under Titles XVI and II 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 filed applications for DIB on January 31, 2012, and for SSI on January 9, 2012, and alleged a disability onset date of March 19, 1980. Tr. 37, 312, 314.² Her applications were denied initially and on reconsideration. An AdministrativeLaw Judge (ALJ) held a hearing on June 10, 2014. Tr. 60-123. At the hearing Plaintiff and a vocational expert (VE) testified. Plaintiff was represented by an attorney.

On August 20, 2014, the ALJ issued an opinion in which she found Plaintiff is not disabled and, therefore, is not entitled to benefits. Tr. 37-52. On November 20, 2015, that decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. Tr. 1-4. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

BACKGROUND

Plaintiff was born on March 19, 1980. Tr. 312, 314. Plaintiff was 34 years old at the time of the hearing. Tr. 60, 312, 314. Plaintiff has a high-school diploma. Tr. 346. Plaintiff has past relevant work experience as a bus person, stock clerk, hand-packager, and nurse assistant. Tr. 50, 107.

Plaintiff alleges disability due to "learning and mental disabilities" and back pain. Tr. 345.

Except when 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. 40-50.

STANDARDS

The initial burden of proof rests on the claimant to establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 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." 42 U.S.C. § 423(d)(1)(A). 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. 42 U.S.C. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin., 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 determining credibility, resolving conflicts in the medical evidence, and resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9^th Cir. 2009). 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 Commissioner determines the claimant is engaged in substantial gainful activity. 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 impairments or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). 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. 20 C.F.R. § 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. 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, she 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. 20 C.F.R. § 404.1520(e). See also Social Security Ruling (SSR) 96-8p. "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent schedule." SSR 96-8p, at *1. 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. 20 C.F.R. § 404.1520(a)(4)(iv). See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine whether the claimant is able to do any other work that exists in the national economy. 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 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. 20 C.F.R. § 404.1520(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff engaged in substantial gainful activity from January 2000 through December 2004 and from January 2007 through December 2007. Tr. 39-40. The ALJ, however, continued the sequential disability evaluation because the ALJ also found there had been "continuous 12-months period(s) during which [Plaintiff] did not engage in substantial gainful activity." Tr. 40.

At Step Two the ALJ found Plaintiff has the severe impairments of post-traumatic stress disorder, panic disorder, dysthymic disorder, borderline intellectual functioning,attention-deficit disorder, left-knee patellofemoral syndrome, and obesity. Tr. 40-41.

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. 41-44.

The ALJ found Plaintiff has the RFC to perform medium work. The ALJ found Plaintiff is able to lift 50 pounds occasionally and 25 pounds frequently; to follow "short and simple instructions"; and to perform work that is limited to "basic routine work tasks," that has "no close interaction with the public and only casual and superficial interaction with co-workers," and that is "stress low to prevent [Plaintiff] from becoming overwhelmed." Tr. 44. The ALJ defined "stress low" work as "no fast-paced production or pace work and a workplace with minimal changes in routine and setting." Tr. 44.

At Step Four the ALJ concluded Plaintiff is unable to perform any of her past relevant work. Tr. 50.

At Step Five, however, the ALJ found Plaintiff is capable of performing other jobs existing in the national economy as a "sweeper cleaner, industrial"; a "warehouse worker"; and a "laborer, salvage." Tr. 51-52. Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION

Plaintiff contends the ALJ erred when he (1) discredited Plaintiff's testimony; (2) improperly considered the medical, record including Plaintiff's Global Assessment of Functioning (GAF) scores, the opinion of Elizabeth Perrine, QMHP, and Ruth Ann Duncan, LMFT, and the opinion of David Truhn, Psy.D.; and (3) discredited the lay testimony of Roy Culver, Plaintiff's father.

I. Plaintiff's Testimony

As noted, Plaintiff contends the ALJ erred when he discredited Plaintiff's testimony.

In Cotton v. Bowen the Ninth Circuit established two requirements for a claimant to present credible symptom testimony: The claimant must produce objective medical evidence of an impairment or impairments, and she must show the impairment or combination of impairments could reasonably be expected to produce...