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Witt v. Colvin

United States District Court, D. Oregon

December 1, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Plaintiff: George J. Wall, Portland, OR. Of Attorneys.

For Defendant: S. Amanda Marshall, United States Attorney, and Ronald K. Silver, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, District of Oregon, Portland, OR; Catherine Escobar, Special Assistant United States Attorney, OFFICE OF THE GENERAL COUNSEL, Social Security Administration, Seattle, WA. Of Attorneys.


Michael H. Simon, United States District Judge.

Christian Harlan Witt (" Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration (" Commissioner") denying his application for Supplemental Security Income (" SSI") under Title XVI of the Social Security Act. For the following reasons, the Court REVERSES the Commissioner's decision and REMANDS for further proceedings consistent with this opinion.


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. The Application

Plaintiff, Christian Harlan Witt, was born in Minneapolis, Minnesota on April 26, 1957. AR 25, 530. On May 7, 2010, Plaintiff protectively filed an application for SSI benefits, alleging disability beginning June 2, 1999. AR 158. He later amended the alleged onset date to March 28, 2008. AR 18. Plaintiff was 53 years old on the date his application was filed, and he is currently 57 years old.

Plaintiff has three daughters and nine grandchildren who live in Alaska. AR 531. He has spent at least ten years of his life in prison, for crimes ranging from driving under the influence to assault. AR 44, 52, 257. Plaintiff also has a history of homelessness, and on June 8, 2010, he reported that he was living in blackberry bushes near the Portland, Oregon airport. Plaintiff later moved into low-income housing in downtown Portland. AR 500. Plaintiff has worked as a telephone solicitor and " rigger worker, " which are semi-skilled jobs. AR 25.

Plaintiff's claim for SSI benefits was denied initially on September 1, 2010, and upon reconsideration on October 12, 2012. AR 18. Plaintiff filed a written request for hearing and on February 22, 2012, a hearing was held before an Administrative Law Judge (" ALJ"). AR 31. After the hearing, Plaintiff's attorney sought to amend Plaintiff's onset date to March 28, 2008. AR 157. Plaintiff's attorney also sought to reopen a prior application filed December 7, 2009, which had been denied on March 25, 2010. Id. On April 17, 2012, the ALJ issued a decision finding Plaintiff had not been disabled within the meaning of the Social Security Act since March 28, 2008, the amended alleged onset date. AR 18. The ALJ did not expressly reopen Plaintiff's prior application. By considering on the merits issues of the claimant's disability during the already adjudicated period, however, the ALJ de facto reopened Plaintiff's previous application. Lester v. Chater, 81 F.3d 821, 827 n. 3 (9th Cir. 1995). Plaintiff appealed the ALJ's decision to the Appeals Council, which denied Plaintiff's request for review on July 2, 2013. AR 1. Plaintiff now seeks judicial review of the ALJ's decision.

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 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (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), ...

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