United States District Court, D. Oregon
OPINION & ORDER
D. CLARKE, United States Magistrate Judge
Joy Davis ("Plaintiff), seeks judicial review of the
final decision of the Commissioner of Social Security
("Commissioner") denying disability benefits under
Title II of the Social Security Act. For the reasons set
forth below, the decision of the Commissioner is AFFIRMED.
was born on November 22, 1968, has at least a high school
education, and is able to communicate in English. Tr. 26. She
worked as a medical assistant. Id. Plaintiff filed
her initial claim for disability on October 26, 2011,
alleging disability due to chronic back pain, arthritis, and
neuropathy beginning on June 13, 2011. Tr. 65. Plaintiff was
insured under Title II of the Social Security Act through
December 31, 2016. Tr. 17.
claim was denied initially and upon reconsideration. Tr. 15.
Plaintiff requested a hearing before an Administrative Law
Judge ("ALJ"). Plaintiff appeared at a video
hearing and testified before ALJ Marilyn S. Mauer on May 7,
2014. Id. On July 25, 2014, the ALJ determined that
Plaintiff was not disabled. Tr. 28. On October 26, 2015, the
Appeals Council denied Plaintiffs subsequent request for
review, making the ALJ's decision the final decision of
the Commissioner of Social Security. Tr. 1. This appeal
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, 648 F.3d
721, 724 (9th Cir. 2011). 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)(h); 416.920(a)(4)(h). An impairment is
"severe" if it significantly limits the
claimant's physical or mental ability to do basic work
activities. 20 C.F.R. §§ 404.1520(c); 416.920(c).
This impairment must have lasted or must 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)(h); 416.920(a)(4)(h). If the
claimant has a severe impairment, the analysis proceeds to
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. §§
404.152Q(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 proceeds beyond step three. 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).
claimant bears the burden of proof at steps one through four.
Id. at 953. The Commissioner bears the burden of
proof at step five. Id. at 953-54. 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." Tackett v. Apfel, 180 F.3d 1094,
1100 (9th Cir. 1999); 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.
performed the sequential analysis. At step one, the ALJ found
that Plaintiff had not performed substantial gainful activity
since the original alleged onset date of June 13, 2011. Tr.
17. At step two, the ALJ found Plaintiff had the following
severe impairments: chronic pain status post cervical fusion
times two and lumbar micorodisectomy; obesity; cervical
radicular pain intp the arms, right greater than left; and
osteoarthritis of the right hip. Id. At step three,
the ALJ found Plaintiffs impairments did not meet or equal a
listed impairment. Tr. 19.
then assessed Plaintiffs RFC and determined that Plaintiff
could perform light exertion work with lifting and carrying
of twenty pounds occasionally and ten pounds frequently. Tr.
20. Plaintiff can stand, walk, and sit for six hours of an
eight-hour workday for a combined total of eight hours of
activity, but will require the option to change from seated
to standing position every twenty minutes while still
performing essential tasks. Id. Plaintiff can never
climb ladders, ropes, or scaffolds. Id. She can
never be exposed to hazards such as unprotected heights and
large moving equipment. Id. She can occasionally
climb ramps or stairs. Id. She can occasionally
stoop, crouch, kneel, and crawl. Id. She can never
reach overhead. Id. She can perform frequent
handling, fingering, and feeling with the right upper
extremity. Id. Plaintiff should avoid concentrated
exposure to cold temperatures. Id. Due to the impact
of her pain and pain medications, Plaintiff can understand,
remember, and carry out only simple instructions.
four, the ALJ determined that Plaintiff was unable to perform
her past relevant work. Tr. 26. At step five, the ALJ found
that Plaintiff had the RFC to perform work as a counter
clerk, information travel clerk, and protective clothing
issuer. Tr. 27. Accordingly, the ALJ found Plaintiff not
disabled. Tr. 28.
district court must affirm the Commissioner's decision if
the decision is based on proper legal standards and the legal
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm'r, 359
F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence
"means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(citation and internal quotations omitted). In reviewing the
Commissioner's alleged errors, this court must weigh
"both the evidence that supports and detracts from the
[Commissioner's] conclusions." Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable
interpretations of the evidence are insignificant if the
Commissioner's interpretation is rational. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
the evidence before the ALJ is subject to more than one
rational interpretation, we must defer to the ALJ's
conclusion. Batson, 359 F.3d at 1198 (citing
Andrews v. Shalala,53 F.3d 1035, 1039-40 (9th Cir.
1995)). A reviewing court, however, cannot affirm the
Commissioner's decision on a ground that the agency did
not invoke in making its decision. Stout v. Comm
'r,454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a
court may not reverse an ALJ's decision on account of an
error that is harmless. Id. at 1055-56. "[T]he
burden of showing that ...