Creech v. Commissioner Social Security Administration, No. 6:2009cv06275 - Document 14 (D. Or. 2010)

Court Description: Opinion and Order: The Commissioner's decision is based on substantial evidence, and is therefore, affirmed. This case is dismissed. Signed on September 29, 2010 by Chief Judge Ann L. Aiken. (cp)

Download PDF

Creech v. Commissioner Social Security Administration Doc. 14 1 2 3 4 5 6 7 8 9 10 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE DISTRICT OF OREGON 13 MARK CREECH, 14 Civil No. 09-6275-AA OPINION AND ORDER Plaintiff, 15 vs. 16 17 MICHAEL J. ASTRUE, Commissioner of Social Security, 18 Defendant. 19 20 21 Brenda S. Moseley Attorney At Law 320 Central Ave., Suite 422 Coos Bay, Oregon 97420 Attorney for plaintiff 22 23 24 25 Dwight Holton United States Attorney District of Oregon Adrian L. Brown Assistant united States Attorney 1000 S.W. Third Avenue Portland, Oregon 97204-2902 26 27 28 Leisa A. Wolf Special Assistant U.S. Attorney Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 901 1 - OPINION AND ORDER Dockets.Justia.com 1 2 Seattle, Washington 98104 7075 Attorneys for defendant AIKEN, Chief Judge: 3 4 5 6 7 8 9 Claimant, Mark Creech, brings this action pursuant to the Social Security Act (the Act), 42 U.S.C. 405(g) §§ and 1383 (c) (3), to obtain judicial review of a final decision of the Commissioner denying his application for Supplemental Security Income (SSI) disability benefits under Title XVI of the Act. the reasons set forth below, For the Commissioner's decision is affirmed and this case is dismissed. 10 PROCEDtJrulL BACKGROUND 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff was previously denied benefits in January 2004. Tr. 8. Plaintiff then filed a new application February 2006. SSI in Plaintiff alleged disability beginning June 1998 due to back and neck pain ar..d carpel tunnel. Commissioner denied plaintiff's reconsideration. for Tr. 134. The application initially and on An Administrative Law Judge (ALJ) held hearings on March 18, 2008, and October 28, 2008. Tr. 27-50, 272-312. Following the March 2008 hearing, the ALJ continued the matter in order to obtain testimony from a vocational expert (VE). Id. On November 28, 2008, the ALJ issued a decision finding plaintiff not disabled at step five finding he could perform work existing in significant numbers in the national economy. Tr. 53-65. The Appeals Council denied plainti::f' s request for review, making the ALJ's decision the Commissioner's final decision. Tr. 1-4. The relevant period under review is from March 2006, to November 28, 2008. 27 28 2 - OPINION AND ORDER STATEMENT OF THE FACTS 1 2 Plaintiff was 47 years old at the time of his last 3 disability hearing. 4 out of school at 5 commercial fisher, he completed an automotive training course, 6 and worked part-time 7 plaintiff also admitted manufacturing methamphetamine as a source 8 of income. 9 1996 including use within the past year, but denies addiction. 10 He complElted eighth grade and then dropped 15 years cId. as Tr. 250-51. a He had previous work as caregi ver for his a blind mother. He a.dmitted methamphetamine use since Id. 11 STANDARD OF REVIEW 12 This court must affirm the Secretary's decision if it is 13 based on proper legal standards and the findings are supported by 14 substantial evidence in the rE,cord. 15 498, 501 (9th Cir. 1989). 16 mere scintilla. 17 mind might accept 18 Richardson v. 19 Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). 20 The 21 detracts from the Secretary's conclusion." 22 807 F.2d 771, 772 (9th Cir. 1986). court 23 must Hammock v. Bowen, 879 F. 2d Substantial evidence is "more than a It means such relevant evidence as a reasonable as adequa'te Pera1es, weigh 402 "both to U.S. the support 389, a 401 evidence conclusion." (1971) that (quoting supports and Martinez v. Heckler, The initial burden of proof rests upon the claimant to 24 establish disability. 25 (9th Cir. 1986). 26 an "inability to engage in any substantial gainful activity by 27 reason 28 impairment which can be expected . . . to last for a continuous 3 of any Howard v. Heckler, 782 F.2d 1484, 1486 To meet this burden, plaintiff must demonstrate medically - OPINION AND ORDER determinable physical or mental 1 period 2 not The less than Secretary 12 42 " has months. U.S.C. 423 (d) (1) (A) . 3 of established a five-step § sequential Bowen v. 4 process for determining whethE,r a person is disabled. 5 Yuckert, 6 416.920. 7 engaged in "substantial gainful activity." If so, the claimant 8 is 140; 9 404.1520(b),416.920(b). 482 not 10 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, First the Secretary determines whether a claimant is disabled. Yuckert, 482 U.S. at 20 C.F.R. §§ In step two the Secretary determines whether the claimant 11 has a "medically 12 impairments." 13 §§ 14 disabled. In impairment or combination of Yuckert, 482 U.S. at 140-41; see 20 C.F.R. 404.1520(c), 15 severe step 416.920(c). three the If not, Secretary the claimant not whether determines is the 16 impairment meets or equals "one of a number of listed impairments 17 that the Secretary acknowledsres are so severe as to preclude 18 substantial gainful 19 404.1520(d), 416.920(d). 20 presumed disabled; if not, the Secretary proceeds to step four. 21 Yuckert, 482 U.S. at 141. 22 activity." I f so, Id.; see 20 C.F.R. §§ the claimant is conclusively In step four the Secretary determines whether the claimant 23 can 24 404.1520(e), 25 disabled. If she cannot perform past relevant work, the burden 26 shifts the 27 establish that the claimant can perform other work. 28 U.S. at 141-42; .§.§.Sl20 C.F.R. % 404.1520(e)-(g), 416.920(e)-(g). 4 still to perform "past 416.920(e). Secretary. OPINION AND ORDER relevant work." 20 If ":he claimant can work, In step five, the C.F.R. §§ she is not Secretary must Yuckert, 482 1 If the Secretary meets this burden and proves that the claimant 2 is 3 economy, she is not disabled. able to perform other wcrk which exists 4 in the national 20 C.F.R. §§ 404.1566, 416.966. DISCUSSION 5 1. The ALJ's Findings 6 At step one, the ALJ found that plaintiff did not perform 7 substantial gainful activity after his alleged disability onset 8 date. 9 severe impairments were: statu" post neck surgery; alcohol abuse; Tr. 58. At step two, the ALJ found that plaintiff's 10 learning disability, not otherwise specified. 11 three the ALJ found that plaintiff's impairments did not meet or 12 equal 13 determined that plaintiff's residual functional capacity (RFC) 14 was the performance of medium work. 15 limited by his inability to fo:.low written instructions. 16 step four, 17 past relevant work. 18 found that 19 disabled because there were 20 numbers in the national economy, 21 cleaner, kitchen helper, or cleaner. 22 23 the requirements of a listed Tr. 58. impairment. Tr. 59. At step The ALJ Plaintiff was also Id. At the ALJ found that plaintiff could not perform his Tr. 63. Finally, based on vocational at step five, testimony, the ALJ plaintiff was not jobs that existed in significant including work as a hospital Tr. 64, 27-50. 2. Plaintiff's Allegations of Error A. Plaintiff's Credibility 24 Plaintiff asserts that the ALJ failed to articulate clear 25 and convincing reasons for finding his subjective complaints less 26 than fully credible. 27 give 28 medically-related 5 clear and Absent evidence of malingering, an ALJ must convincing symptoms. - OPINION AND ORDER reasons to Carmickle reject v. a Comm' r« plaintiff's Soc. Sec. 533 Admin., 2 include 3 treatment, daily 4 symptoms, medical 5 Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9 th Cir. 2007). conflicting The 6 F.3d 1155, ALJ 1162 (9 th Cir. 1 medical evidence, activities inconsistent noncompliance, found that 2008). or plaintiff's poor Those reasons effective medical with alleged the work medically history. determinable 7 impairments could reasonably be expected to produce some of the 8 alleged symptoms; however, plaintiff's statements concerning the 9 intensi ty, persistence and limiting effects of these symptoms 10 were not credible to the extent they were inconsistent with the 11 RFC assessment. 12 daily living did not support his allegations of total disability. 13 Tr. 60. 14 of daily living including cooking, laundry, dishes, paying his 15 cell phone bill, and using the computer. 16 and feeds his mother who is ill. 17 inconsistent with alleged symptoms are a relevant credibility 18 consideration. 19 2001) . The ALJ found that plaintiff's activities of plaintiff told Dr. Gregor that he manages his activities Id. Tr. 252. He also wakes Daily activities that are Rollins v. Massanari, 261 F.3d 853, 857 (9 th Cir. Further, Dr. Gregor completed a psycho diagnostic interview 20 21 on April 16, 2008. 22 his history of drug and alcotol abuse. 23 although plaintiff's drinking jid not necessarily interfere with 24 work, 25 plaintiff's 26 Plaintiff also revealed that he had a medical marijuana card and 27 uses marijuana once per week at night to aid his sleep. 28 ALJ notej that at the hearing plaintiff stated that although he 6 his reported previous Tr. 248-250. alcohol reports - OPINION AND ORDER Plaintiff told Dr. Gregor of abuse that he Dr. Gregor noted that was inconsistent did not drink. with l.J;i.,. Id. The 1 had prescriptions for pain killers and other drugs, he could not 2 afford to have them filled. Tr. 62. The ALJ also noted Dr. 3 Nolan' s report that plaintiff's 4 father reported that plaintiff was out "getting a load of hay." 5 Tr. 195-97. 6 of hay was at odds with plaintiff's alleged capabilities, noting 7 that a typical hay bale weighs approximately 80 pounds. The 8 9 The ALJ found that the labor in transporting a load ALJ articulated clear and convincing reasons for rej ecting some of plaintiff's "testimony concerning the degree of 10 severi ty of his symptoms. Moreover, the ALJ fashioned a RFC 11 finding that accounted for plaintiff's credible limitations. Tr. 12 59. 13 support the credibility finding. 14 B. Residual Functional Capacity Assessment Finally, the ALJ provided clear and convincing reasons to Tr. 59-62. Plaintiff next argues that the ALJ's RFC assessment was 15 16 improper in that it 17 limitations. 18 properly accounted for all of plaintiff's limitations that the 19 ALJ found credible and were supported by the medical evidence in 20 the record. 21 2001) . I disagree and find that the ALJ's RFC assessment Rollins v. Massanari, 261 F.3d 853, 856-57 (9 th Cir. Pla"intiff's 22 failed to account for all of plaintiff's RFC is the most he can do considering his 23 impairments and limitations. SSR 96-8p. 24 RFC is not a medical issue, but an administrative finding that is 25 dispositive of the case. 26 such issues is reserved to the Commissioner, and by delegation of 27 authority, 28 assessing 7 to the ALJ. plaintiff's The final responsibility for deciding SSR 96-5p. RFC, - OPINION AND ORDER The issue of plaintiff's the Regardless, ALJ must however, consider the when entire 1 record and explain the weight given to the medical evidence and 2 testimony. 3 medium work limited by 4 instructions. Tr. 59. The A1J's RFC finding is correct because 5 it "took into account those limitations for which there was 6 support 7 subjective 8 Barnhart, 427 F.3d 1211, 1217 (9 th Cir. 2005). The A1J found [in the record] complaints his [and] that that plaintiff could perform inability to follow did not depend on lacked credibility." written [plaintiff's] Bayliss v. 9 Finally, substantial evidence supports the A1J's reliance 10 on the vocational expert's testimony that plaintiff could perform 11 other work, 12 cleaner and that those jobs existed in significant numbers in the 13 national economy. 14 supported limitations in hypothetical questions to the vocational 15 expert. including a hospital cleaner, Tr. 64, 38-42. kitchen helper, or The ALJ properly included all Tr. 530-51. CONCLUSION 16 The 17 Commissioner's decision 18 evidence, and is therefore, affirmed. 19 is based on substantial IT IS SO ORDERED. Dated this 20 This case is dismissed. ;).1 day of September 2010. 21 22 23 24 Ann Aiken United States District Judge 25 26 27 28 8 - OPINION AND ORDER

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.