United States District Court, D. Oregon
BERNITA L. FRITZ, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
MERRILL SCHNEIDER, Schneider, Kerr & Gibney, Portland, OR, Attorney for Plaintiff
S. AMANDA MARSHALL, United States Attorney, District of Oregon, RONALD K. SILVER, Assistant United States Attorney, Portland, OR, MARTHA A. BODEN,
Social Security Administration Office of the General Counsel, Seattle, WA,
Attorneys for Defendant.
OPINION AND ORDER
MALCOLM F. MARSH, District Judge.
Plaintiff Bernita Fritz seeks judicial review of the final decision of the Commissioner of Social Security denying her application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C §§ 401-403, and Supplemental Security Income (SSI) disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and 1383(c) (3). For the reasons that follow, this court reverses the decision of the Commissioner and remands this matter pursuant to sentence four of 42 U.S.C. §405(g) for further administrative proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff protectively filed an application for DIB and SSI on December 21, 2010, alleging disability beginning November 6, 2009, due to bipolar disorder. Plaintiff meets the insured status requirements for a DIB application through December 31, 2014.
Plaintiff's claims were denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a hearing on November 28, 2012, at which plaintiff appeared with her attorney and testified. A vocational expert, Thomas P. Weiford, also appeared at the second hearing and testified. On January 24, 2013, the ALJ issued an unfavorable decision. The Appeals Council denied plaintiff's request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review.
Born in 1963, plaintiff was 50 years old on the date of the ALJ's unfavorable decision. Plaintiff has a ninth grade education and obtained her General Education Degree (GED). Plaintiff has past relevant work as a certified nursing assistant (CNA) and gas station attendant.
THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since November 6, 2009. At step two, the ALJ found that plaintiff had the following severe impairments: affective/bipolar disorder and breathing difficulty. At step three, the ALJ found that plaintiff's impairment or combination of impairments, did not meet or medically equal a listed impairment.
The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform less than a full range of light work as defined in 20 C.F.R. § 404.1567(b) with additional limitations. Plaintiff can lift and carry 20 pounds occasionally and ten pounds frequently, can stand and walk in two-hour intervals for a total of eight hours per day, and has no restrictions in sitting. Plaintiff is also able to remember, understand, and carry out instructions and tasks that are generally required by occupations with a skill vocational preparation (SVP)of 1 to 3.
At step four, the ALJ found that plaintiff is able to perform her past work as a gas station attendant. Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from November 6, 2009, through the date of the decision.
ISSUES ON REVIEW
On appeal to this court, plaintiff contends the following errors were committed: (1) the ALJ erred in evaluating the medical opinion of nonexamining physician, Sandra Lundblad, Psy.D; (2) the ALJ failed to properly evaluate plaintiff's RFC; (3) the ALJ erred in evaluating lay testimony; and (4) based on these errors, the ALJ erred in finding plaintiff can perform her past work at Step Four.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if the Commissioner applied the proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is 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." Hill, 698 F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
I. The ALJ Erred in Evaluating Dr. Lundblad's Opinion
"The opinion of an examining physician is entitled to greater weight than the opinion of a nonexamining physician." Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir. 1995). A nonexamining physician is one who neither examines no treats the claimant. Id. at 830. "The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Id. at 831. A nonexamining physician's opinion can constitute substantial evidence if it is supported by other evidence in the record. Morgan v. Commissioner of Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999). Moreover, the "report of a ...