McLemore v. Colvin

AMOS L. MCLEMORE, Plaintiff, v. CAROLYN W. COLVIN,Commissioner, Social Security Administration, Defendant.

3:15-cv-00743-BR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

April 21, 2016

OPINION AND ORDER

TIM WILBORN

Wilborn Law Office, P.C.

P.O. Box 370578

Las Vegas, NV 89137

(702) 240-0184

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) 727-1003

DAVID MORADO

Regional Chief Counsel

LISA GOLDOFTAS

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900

Seattle, WA 98104

(206) 615-3858

Attorneys for Defendant

BROWN, Judge.

Plaintiff Amos L. McLemore seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's application for 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 with prejudice.

ADMINISTRATIVE HISTORY

Plaintiff filed an application for SSI on September 1, 2011, and alleged a disability onset date of January 1, 2008. Tr. 23, 208.¹ His application was denied initially and on reconsideration. An Administrative Law Judge (ALJ) held a hearing on November 4, 2013. Tr. 31. At the hearing Plaintiff and a vocational expert (VE) testified. Plaintiff was represented by an attorney.

On November 18, 2013, the ALJ issued an opinion in which she found Plaintiff is not disabled and, therefore, is not entitled to benefits. Tr. 23-32. On February 25, 2015, that decision became the final decision of the Commissioner when the AppealsCouncil 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 December 23, 1970. Tr. 44, 165. Plaintiff was 42 years old at the time of the hearing. Plaintiff has a high-school equivalency degree. Tr. 44, 223. Plaintiff has not performed past relevant work. Tr. 30, 65.

Plaintiff alleges disability due to his "c-spine surgery," sciatic nerve pain, and a "slipped" disc in his lower back. Tr. 222.

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. 27-30.

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 his 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 (9th 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 findingsif 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

At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.920(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. § 416.920(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. § 416.920(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 mustassess 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. § 416.920(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 he has done in the past. 20 C.F.R. § 416.920(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. § 416.920(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 setforth 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), 416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in substantial gainful activity since his September 1, 2011, application date. Tr. 25.

At Step Two the ALJ found Plaintiff has the severe impairments of degenerative disc disease with fusion, anxiety-related disorder, below-average intellectual functioning, and attention-deficit hyperactivity disorder. Tr. 25-26.

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. 26-27.

In her assessment of Plaintiff's RFC, the ALJ found Plaintiff can perform light work as defined in 20 C.F.R. § 416.967(b). The ALJ specified Plaintiff can stand and walk for six hours in an eight-hour workday, sit for six hours in an eight-hour workday. The ALJ found Plaintiff can frequently climb ramps and stairs and can occasionally climb ladders and scaffolds, stoop, kneel, crouch, and crawl. The ALJ concluded Plaintiff can understand, remember, and carry out unskilled,routine and repetitive work that requires only occasional interaction with supervisors and that does not require a team or cooperative effort with coworkers. The ALJ also found Plaintiff cannot perform work that requires "interaction with the general public as an essential element of the job, but other contact with the general public is not precluded." Tr. 27-30.

At Step Four the ALJ concluded Plaintiff does not have any past relevant work. Tr. 30.

At Step Five the ALJ concluded Plaintiff is capable of performing other jobs existing in the national economy as a housekeeper, electronic assembler, laundry folder, and cannery worker. Tr. 31-32. Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) discredited Plaintiff's testimony without providing legally sufficient reasons for doing so; (2) discredited the opinion of Keli J. Dean, Psy.D., without providing legally sufficient reasons for doing so; (3) failed to find that Plaintiff is disabled at Step Three based on his intellectual impairments; and (4) concluded Plaintiff is not disabled based on an assessment of Plaintiff's RFC that did not fully account for the limitations identified by Plaintiff and Dr. Dean.

I. 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 he must show the impairment or combination of impairments could reasonably be expected to produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th Cir. 1986). See also Spelatz v. Astrue, 321 F. App'x 689, 692 (9th Cir. 2009). The claimant, however, need not produce objective medical...