United States District Court, D. Oregon
Bruce W. Brewer, P.O. Box 421, West Linn, OR 97068, Of Attorney for Plaintiff.
S. Amanda Marshall, United States Attorney, District of Oregon, and Ronald K. Silver, Assistant United States Attorney, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97201-2902; Richard M. Rodriguez, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A. Of Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Ms. Victoria Closser ("Ms. Closser") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying Ms. Closser's application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. For the following reasons the Commissioner's decision is AFFIRMED.
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 of the Soc. Sec. Admin., 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. Ms. Closser's Application
Ms. Closser protectively filed an application for DIB on February 2, 2010, alleging a disability onset date of February 9, 2003. AR 17. Her date last insured under the Social Security Act was December 31, 2007. AR 17. Ms. Closser was born on June 4, 1965 and was 37 years old at the time of the alleged onset of disability and 42 years old on her date last insured. AR 152. Ms. Closser alleged disability due to fibromyalgia, depression, back and hip pain, asthma, restless leg syndrome, benign essential tremor, sleep apnea, dyslexia, morbid obesity, and heel spurs. AR 170.
Ms. Closser's application initially was denied on May 27, 2010. AR 95. She requested reconsideration and the application again was denied on September 8, 2010. AR 104, 106. Ms. Closser then requested a hearing and one was held on December 28, 2011 in front of an Administrative Law Judge (the "ALJ"). AR 32-72, 110, 120. The ALJ issued a written decision on January 25, 2012, finding that Ms. Closser was not disabled between the alleged onset date and the date last insured and denying the application. AR 14-27.
On March 15, 2012, Ms. Closser filed a request for review by the Appeals Council and that request was denied on June 12, 2012, rendering the ALJ's decision the final decision of the Commissioner. AR 1-3, 7. Ms. Closser seeks review of the ALJ's decision denying her application for DIB.
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 activily?" 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). 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). 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. 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 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). 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, 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 (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. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.
C. The ALJ's Opinion
The ALJ began by noting that Ms. Closser last met the insured requirements of the Social Security Act on December 31, 2007. AR 19. The ALJ then engaged in the sequential analysis required by regulation. At step one, he determined that Ms. Closser did not engage in any substantial gainful activity between her alleged onset date of February 9, 2003 and her date last insured of December 31, 2007. AR 19. At step two, he determined that Ms. Closser had severe impairments related to fibromyalgia and obesity. AR 19-20.
At step three, the ALJ first found that Ms. Closser's impairments or combination of impairments do not meet or medically equal the severity of an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. AR 21. The ALJ then determined that Ms. Closser has the RFC to perform a full range of sedentary work with the ability to lift and carry five pounds frequently and ten pound occasionally, stand or walk two hours in an eight hour day, and sit for six hours in an eight hour day. AR 21.
In determining Ms. Closser's RFC, the ALJ found that her medically determinable impairments could reasonably be expected to cause her alleged symptoms, but that her allegations regarding the extent of those symptoms and the resulting limitations are not fully credible. AR 22. The ALJ considered evidence of Ms. Closser's daily activities; her symptoms related to fibromyalgia, back spasms and pain, depression, and sleep apnea; notes from her visits with medical professionals; and written testimony from her husband. AR 21-26.
At step four, the ALJ found that Ms. Closser is capable of returning to her past relevant work as a call technician or a computer programmer because the work activities required by those jobs are not precluded by her RFC. AR 26. Having found that Ms. Closser could return to her past relevant work, the ALJ did not engage in step five of the sequential analysis and did not determine whether Ms. Closser could adjust to other work. The ALJ ...