United States District Court, D. Oregon
Bruce W. Brewer, Law Offices of Bruce W. Brewer, PC, Of Attorney for Plaintiff.
S. Amanda Marshall, United States Attorney, and Adrian L. Brown, Assistant United States Attorney, U.S. Attorney's Office, District of Oregon, Jeffrey R. McClain, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Of Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Kecia Lee Rostocil seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for disability insurance benefits. For the following reasons, the Commissioner's decision is REVERSED and REMANDED for an award of benefits.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "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." Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
If "the evidence is susceptible to more than one rational interpretation, " the Court must uphold the Commissioner's conclusion. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and the Court may not substitute its judgment for that of the Commissioner. See Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). A reviewing court, however, "must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.'" Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). The court may review "only the reasons provided by the" Administrative Law Judge ("ALJ") "in the disability determination and may not affirm the ALJ on a ground upon which [the ALJ] did not rely." Id.; see also Bray, 554 F.3d at 1225.
A. The Application
Ms. Rostocil was born on May 22, 1968 and is 45 years old. AR 34. She protectively filed an application for disability insurance benefits on May 4, 2010, alleging disability beginning December 1, 2007. AR 26. She alleges disability due to fibromyalgia, diabetes mellitus, weak manic depression, "neuropathy hypertension, " hypothyroidism, and sleep apnea. AR 185. The Commissioner denied her application initially and upon reconsideration; thereafter, Ms. Rostocil filed a written request for a hearing before an ALJ. AR 26. After an administrative hearing held on September 1, 2011, the ALJ ruled that Ms. Rostocil is not disabled. AR 26-36. The Appeals Council denied Ms. Rostocil's request for review, making the ALJ's decision the final decision of the Commissioner. AR 1. Ms. Rostocil now seeks judicial review of that decision, requesting remand.
B. The Sequential Analysis
A claimant is disabled if he or 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). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. § 404.1520(a)(4). The five-step sequential process asks the following series of questions:
1. Is the claimant performing "substantial gainful activity?" 20 C.F.R. § 404.1520(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. § 404.1510. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment "severe" under the Commissioner's regulations? 20 C.F.R. § 404.1520(a)(4)(ii). Unless expected to result in death, an impairment is "severe" if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a). This impairment must have lasted or must be expected to last for a continuous period of at least 12 months. 20 C.F.R. § 404.1509. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or equal" one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis proceeds beyond step three. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's "residual functional capacity" ("RFC"). 20 C.F.R. § 404.1520(e). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. Id. After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant work" with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(v); 404.1560(c). If the claimant cannot perform such work, he or she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's [RFC], age, education, and work experience." Id.; see also 20 C.F.R. § 404.1566 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Tackett, 180 F.3d at 1099.
C. The ALJ's Decision
The ALJ performed the sequential analysis in his October 20, 2011 decision. AR 26-36. At step one, the ALJ found that Ms. Rostocil did not engage in substantial gainful activity since her alleged onset date of December 1, 2007 through December 31, 2010, her date last insured. AR 28. At step two, the ALJ concluded that Ms. Rostocil's fibromyalgia, diabetes mellitus, left ulnar neuropathy post release in June 2010, depression, anxiety with panic attacks, posttraumatic stress disorder, and obesity were severe impairments. AR 28. At step three, the ALJ ruled that Ms. Rostocil did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in the regulations. AR 29.
The ALJ next assessed Ms. Rostocil's RFC. The ALJ found that Ms. Rostocil retained the capacity to perform less than the full range of light work as defined in 20 C.F.R. § 404.1567(b). AR 30. Specifically, the ALJ found that Ms. Rostocil: (1) should never climb ladders, ropes, or scaffolds; (2) can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, crawl, and operate foot controls; (3) should avoid concentrated exposure to vibration and hazards; and (4) should have no interaction with the public and superficial interaction with coworkers, but no close cooperation or coordination. Id. The ALJ limited Ms. Rostocil's RFC to performing unskilled work and routine tasks. Id. At step four, the ALJ determined that Ms. Rostocil's RFC rendered her unable to perform her past relevant work. AR 34.
In determining the RFC, the ALJ gave Ms. Rostocil's testimony "[l]ittle weight" compared to the objective medical evidence, and "some" but "not controlling" weight to a Veterans Affairs ("VA") determination that she was 80 percent unemployable ("Original Determination"). AR 33-34. The ALJ was unable to consider a second VA determination finding Ms. Rostocil 100 percent unemployable ("September 2011 Determination") because the VA issued it on September 30, 2011, after the hearing, and Ms. Rostocil did not submit it for the record until March 5, 2012, after the ALJ's decision. AR 311, 318.
At step five, based on the testimony of a vocational expert ("VE"), the ALJ concluded that Ms. Rostocil could perform jobs that existed in significant numbers in the national economy. AR 35-36. Thus, ...