United States District Court, D. Oregon
JEFFREY C. CALKIN, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
Richard F. McGinty, McGinty & Belcher, Of Attorneys for Plaintiff.
S. Amanda Marshall, United States Attorney, and Adrian L. Brown, Assistant United States Attorney, United States Attorney's Office, District of Oregon, Franco L. Becia, Assistant Regional Counsel, John C. LaMont, Special Assistant United States Attorney, and Mathew W. Pile, Office of the General Counsel, Social Security Administration, Of Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Mr. Jeffrey C. Calkin ("Calkin") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying Calkin's application for Supplemental Security Income ("SSI"). For the reasons stated below, the decision is reversed and this case is remanded for further proceedings pursuant to 42 U.S.C. § 405(g).
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." 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)). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm'r, 359 F.3d 1190, 1193 (9th Cir. 2004). "[A] reviewing court 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) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.
A. The Application
Calkin filed a Title XVI application for SSI benefits on December 8, 2008, alleging disability beginning on May 29, 1975. AR 162. Calkin's claim is based on his alleged disability caused by bipolar disorder, hallucinations, mental health, and neuropathy. AR 216-17. Calkin was born in 1975 and is 38 years old. Id. Calkin has two children, and has supervised visitation rights to see his son. AR 62, 586-98. Calkin attended school through the eighth grade. AR 222. Calkin's work history is as a temporary laborer, with his largest reported income coming from his work as a gas station attendant. AR 207-10, 217-18.
The Commissioner denied Calkin's application initially and upon reconsideration; thereafter, Calkin requested a hearing before an ALJ. AR 164-74. Calkin was represented by counsel and appeared at a hearing held on February 4, 2011. AR 32. The ALJ found Calkin not to be disabled and thus ineligible for SSI for the period beginning December 8, 2008 through March 25, 2011, the date of the decision. AR 27. Calkin petitioned the Appeals Council for review of the ALJ's decision. AR 14. On July 19, 2012, the Appeals Council denied the request for review, making the ALJ's decision the final decision of the Commissioner. AR 1-3. Calkin now seeks judicial review of that decision.
B. The Sequential Process
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 (DIB); 20 C.F.R. § 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4); 416.920(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); 416.920(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; 416.910. 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); 416.920(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); 416.920(a)(4)(ii). An impairment or combination of impairments 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); 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(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); 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's "residual functional capacity" ("RFC"). 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. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e); 416.945(b)-(c). 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); 416.920(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); 416.920(a)(4)(v); 404.1560(c); 416.960(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, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. 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 residual functional capacity, age, education, and work experience." Id.; see also 20 C.F.R. §§ 404.1566; 416.966 (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); 416.920(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. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.
C. The ALJ's Decision
The ALJ began his opinion by noting that although SSI is not payable before the month after an SSI application is filed, see 20 C.F.R. § 416.335, he would consider Calkin's complete medical history, in accordance with 20 C.F.R. § 416.912(d). AR 21. The ALJ then applied the sequential process. AR 21-27. At step one, the ALJ found that Calkin had not engaged in substantial gainful activity after the date of Calkin's SSI application on December 8, 2008. AR 22. At step two, the ALJ found that Calkin had schizoaffective disorder, undifferentiated type, which the ALJ characterized as a severe impairment pursuant to 20 C.F.R. § 416.920(c). Id. At step three, the ALJ found that Calkin did not have an impairment or combination of impairments that met or medically equaled one of the specific impairments listed in the regulations. AR 22-23.
The ALJ then determined that for the period beginning on the date of Calkin's SSI application of December 8, 2008, Calkin had a RFC:
[T]o perform the full range of exertional work... but has the specific following non-exertional limitations: limited to performance of simple, routine, and repetitive work; less than occasional contact with the general public; occasional contact with supervisors and co-workers in tasks which do not require a cooperative effort.
AR 23. At step four, the ALJ determined that Calkin had no past relevant work, and thus transferability of job skills was not an issue in this case. AR 26. At step five, the ALJ found that given Calkin's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Calkin could perform. AR 26. After considering the vocational expert's testimony, the ALJ found that Calkin could perform work as a ...