United States District Court, D. Oregon
KATHY J. OVERLUND, Plaintiff,
NANCY A. BERRYHILL,  Commissioner of Social Security, Defendant.
Graf, Alan Stuart Graf, P.C. Of Attorneys for Plaintiff.
J. Williams, United States Attorney, and Janice E.
Hébert, Assistant United States Attorney, United
States Attorney's Office, District of Oregon, ; Lars J.
Nelson, Special Assistant United States Attorney, Office of
the General Counsel, Social Security Administration Of
Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge
J. Overlund (“Plaintiff) seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying her
application for disability insurance benefits
(“DIB”) under Title II of the Social Security Act
(“Act”). For the reasons discussed below, the
Commissioner's decision is REVERSED and REMANDED further
proceedings consistent with the instructions herein.
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 of 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).
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 Soc. Sec. Admin., 359 F.3d
1190, 1193, 1196 (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 1225-26.
protectively filed an application for DIB on October 17,
2011, alleging disability beginning on January 7, 2009. AR
28. She was born on November 14, 1956, and was 52 years old
on the alleged disability onset date. AR 106. Plaintiff
alleges disability due to osteoarthritis of the knees,
osteoarthritis of the shoulders, degenerative disc disease of
the lumbar and cervical spine, obesity, carpel tunnel
syndrome, sleep apnea, essential hypertension, and severe hip
impairment. AR 30-32. Plaintiffs claim was denied initially
on June 19, 2012, and upon reconsideration on October 11,
2012. AR 28. Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”) on December 6,
2012. Id. On November 26, 2013, an administrative
hearing was held before ALJ Janice Shave. Id. On
January 2, 2014, ALJ Shave issued a written decision in which
she found Plaintiff not disabled within the meaning of the
Act. AR 28-44.
February 25, 2014, Plaintiffs attorney requested review of
the ALJ's decision by the Appeals Council. AR 9. In doing
so, Plaintiffs attorney attached two signed letters-drafted
in February 2014-from Plaintiffs husband, Norm Overlund, and
daughter, Amy Overlund (collectively, the
“post-decision letters”). AR 7-9. On June 30,
2015, the Appeals Council denied Plaintiffs request for
review, making the ALJ's decision the final decision of
the Commissioner. AR 11-15. Plaintiff now seeks judicial
review of that decision.
The Sequential Analysis
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 (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
(“Listings”)? 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
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).
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); 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.
The ALJ's Decision
began her opinion by noting that Plaintiff met the insured
status requirements of the Act through March 31, 2014. AR 28.
The ALJ further noted that Plaintiff must establish
disability on or before that date in order to be entitled to
a period of disability and disability benefits. Id.
The ALJ then applied the sequential analysis. AR 30-44. At
step one, the ALJ found that Plaintiff has not engaged in
substantial gainful activity since the alleged onset date of
January 7, 2009. AR 30. At step two, the ALJ found that
Plaintiffs osteoarthritis of the bilateral knees,
osteoarthritis of the bilateral shoulders, degenerative disk
disease of the lumbar and cervical spine, and obesity were
severe impairments. AR 30-32. At step three, the ALJ found
that Plaintiff did not have an impairment or combination of
impairments that met or equaled one of the specific
impairments listed in the regulations. AR 32-33.
next determined that Plaintiff has the RFC to perform
sedentary work. AR 33-42. In making that determination, the
ALJ found several specific limitations that the ALJ included
in the RFC: (1) Plaintiff is able to lift and/or carry ten
pounds occasionally and less than ten pounds frequently; (2)
Plaintiff can stand and/or walk for approximately two hours
in an eight-hour workday, but not all at one time; (3)
Plaintiff must elevate her left leg 12 to 18 inches when
sitting; (3) Plaintiff must sometimes use a cane for
ambulation during the two hours she can stand or walk over
the workday, and needs the option to use the cane when
needed; (4) Plaintiff cannot walk on uneven terrain or in a
cluttered area; (5) Plaintiff is unable to climb ladders,
ropes, or scaffolds, and she is unable to kneel or crawl; (6)
Plaintiff is able to occasionally crouch, stoop, and balance
while holding a hand-held assistive device; (7) Plaintiff can
climb ramps and stairs occasionally within the two hour
maximum that she can stand or walk; (8) Plaintiff is able to
perform extended reaching in the front with the left upper
extremity frequently, but not prolonged or all at once, and
she must be able to rest her left arm; (9) Plaintiff is able
to occasionally reach overhead bilaterally; (10) Plaintiff
must avoid concentrated exposure to extreme cold, moderate
exposure to unprotected heights, and hazardous or moving
machinery; and (10) Plaintiff is limited to mildly complex
instructions due to the distractions of pain. Id.
evaluating Plaintiff's RFC, the ALJ considered
Plaintiff's testimony, but found that it was less than
fully credible. AR 39-40. In addition, the ALJ considered the
written lay testimony submitted by Norm Overlund. AR 39-40,
42. The ALJ also considered the medical testimony and
evidence. She gave significant weight to the consultative
examination performed by Dr. DeWayde C. Perry in May 2012,
but found that he overestimated Plaintiffs lifting and
carrying capacity, in addition to her capacity to stand and
walk. AR 41, 523-30. The ALJ gave great weight to the
conclusions conveyed in a form completed in October 2014 by
Plaintiffs treating physician, Dr. Mark Litchman. AR 41,
686-89. In that report, Dr. Litchman stated that Plaintiff
needed to be “off her feet” periodically
throughout the day due to knee pain, and concluded that
Plaintiff could perform sedentary work. AR 686-89.
assigned limited weight to a check-the-box form filled out by
Plaintiffs treating physician, Dr. Mark Fletcher, in December
2013. AR 41, 718-21. Specifically, the ALJ limited the weight
given to Dr. Fletcher's opinion that Plaintiff could not
effectively ambulate, as that term is defined in the Act,
because Dr. Fletcher provided no explanation for that
conclusion, Plaintiff had never claimed that she required a
hand-held assistive device that limited both upper
extremities, and the question of whether Plaintiff is able to
ambulate effectively is a legal question reserved to the
Commissioner. AR 42. The ALJ also gave little weight to Dr.
Fletcher's checking the box indicating that Plaintiff
would be unable to maintain a regular work schedule for more
than four days per month, because the doctor did not explain
his reasons for checking that box and the medical record did
not support that assertion. AR 42, 721. The ALJ gave great
weight to most of the opinions of the state reviewing
physicians; however, the ALJ found that Plaintiff was more
limited in postural activities than found by the state agency
consultants. AR 42, 106-132.
four, the ALJ found-with the assistance of a Vocational
Expert (“VE”)-that based on the Plaintiffs RFC,
Plaintiff is capable of performing her past relevant work as
a bookkeeper, office helper, and receptionist bookkeeper. AR
42-43. Based on the finding that Plaintiff could perform her
past relevant work, the ALJ concluded that Plaintiff was not
disabled within ...