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Nienaber v. Colvin

United States District Court, W.D. Washington, Seattle

February 14, 2014

MARK DARRYL NIENABER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION RE: SOCIAL SECURITY DISABILITY APPEAL

MARY ALICE THEILER, Chief Magistrate Judge.

Plaintiff Mark Darryl Nienaber proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, the Court recommends that this matter be AFFIRMED.

FACTS AND PROCEDURAL HISTORY

Plaintiff was born on XXXX, 1968.[1] He has a GED. (AR 44, 1379.) He has past relevant work as a ground keeper, small business operator and real estate sales agent.

Plaintiff filed an application for DIB on June 7, 2010[2] and for SSI benefits on October 27, 2009 and June 8, 2010, alleging disability beginning July 30, 2001. (AR 29.) He is insured for DIB through June 30, 2004. Plaintiff's applications were denied at the initial level and on reconsideration. Plaintiff timely requested a hearing.

On February 7, 2011, ALJ M. J. Adams held a hearing, taking testimony from plaintiff, his mother, and a vocational expert. (AR 1373-1418.) On April 27, 2011, the ALJ issued a decision finding plaintiff not disabled from July 30, 2001 through the present. (AR 20-46.)

Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on May 11, 2013 (AR 12-16), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.

JURISDICTION

The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

DISCUSSION

The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had engaged in substantial gainful activity since the alleged onset date, with average monthly earnings of $1, 416, as well as unreported earnings in subsequent years. (AR 31-32.) Noting the existence of additional grounds for a "no disability" finding, the ALJ proceeded through the remaining steps of the sequential evaluation.

At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's lumbar and cervical degenerative disease status-post back surgeries, personality disorder, and drug and alcohol abuse severe. The ALJ found non-severe plaintiff's anxiety disorder and PTSD, mild cognitive disorder, bilateral pneumonia, and hepatitis C. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that plaintiff's impairments did not meet or equal the criteria of a listed impairment.

If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. Considering the effects of both severe and non-severe impairments, including drug abuse, the ALJ found plaintiff able to perform light work with additional mental limitations. Plaintiff has the mental capability to adequately perform the mental activities generally required by competitive, remunerative work. He can understand, remember and carry out simple one-to-two step instructions, as well as detailed or complex instructions required of jobs classified at SVP 1 and 2 or unskilled work, and also some jobs at SVP 3 and 4 semi-skilled level of work. Plaintiff would have an average ability to perform sustained work activities (i.e. can maintain attention and concentration, persistence and pace) in an ordinary work setting on a regular and continuing basis (i.e., eight hours a day, for five days a week, or an equivalent work schedule) within customary tolerances of employers' rules regarding sick leave and absence. He can make judgments on simple work-related decisions and detailed or complex work-related decisions required of jobs up to the semi-skilled level. He can respond appropriately to supervision and to co-workers, and deal with changes all within a stable work environment. With that assessment, the ALJ found plaintiff unable to perform his past relevant work.

If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. With the assistance of a vocational expert, the ALJ found plaintiff capable of performing other jobs, such as small products ...


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