United States District Court, D. Oregon
Wilborn Wilborn Law Office, P.C. Attorney for Plaintiff
E. Hebert Assistant United States Attorney, Lars Nelson
Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
Sandra Despinis brings this action for judicial review of the
Commissioner's final decision denying her application for
Supplemental Security Income (SSI) under Title XVI of the
Social Security Act. This Court has jurisdiction under 42
U.S.C. § 405(g) (incorporated by 42 U.S.C. §
1382(c)(3)). The Commissioner's decision is reversed and
remanded for further proceedings.
applied for SSI on October 16, 2012, alleging disability as
of August 7, 2012. Tr. 197-202. Her application was denied
initially and on reconsideration. Tr. 90, 108. On December
11, 2014, Plaintiff appeared, with counsel, for a hearing
before an Administrative Law Judge (ALJ). Tr. 32. On January
29, 2015, the ALJ found Plaintiff not disabled. Tr. 24. The
Appeals Council denied review. Tr. 1.
alleges disability based on bipolar disorder, PTSD, severe
migraine headaches, ovarian cysts, lower back pain-sciatica,
and pain in her right knee. Tr. 221. Plaintiff was 29
years-old at the time of the administrative hearing. Tr. 197.
Plaintiff obtained a GED. Tr. 222. She worked as a cashier,
crew member at a fast food restaurant, housekeeper, and shift
manager at a video store. Id.
claimant is disabled if 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). Disability claims are evaluated according to a
five-step procedure. See, e.g., Valentine v.
Comm'r, 574 F.3d 685, 689 (9th Cir. 2009). The
claimant bears the ultimate burden of proving disability. Id.
first step, the Commissioner determines whether a claimant is
engaged in “substantial gainful activity.” If so,
the claimant is not disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b),
416.920(b). In step two, the Commissioner determines whether
the claimant has a “medically severe impairment or
combination of impairments.” Yuckert, 482 U.S. 137 at
140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If
not, the claimant is not disabled.
three, the Commissioner determines whether the impairment
meets or equals “one of a number of listed impairments
that the [Commissioner] acknowledges are so severe as to
preclude substantial gainful activity.” Yuckert, 482
U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d).
If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four. Yuckert, 482
U.S. at 141.
four, the Commissioner determines whether the claimant,
despite any impairment(s), has the residual functional
capacity to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can, the claimant is not disabled. If the claimant cannot
perform past relevant work, the burden shifts to the
Commissioner. In step five, the Commissioner must establish
that the claimant can perform other work. Yuckert, 482 U.S.
at 141-42; 20 C.F.R. §§ 404.1520(e) & (f),
416.920(e) & (f). If the Commissioner meets his burden
and proves that the claimant is able to perform other work
which exists in the national economy, the claimant is not
disabled. 20 C.F.R. §§ 404.1566, 416.966.
one, the ALJ determined that Plaintiff has not engaged in
substantial gainful activity since October 16, 2012, the
application date. Tr. 14. Next, at steps two and three, the
ALJ determined that Plaintiff has the following severe
impairments: “migraine headaches; sciatica; lumbar
radiculopathy; popliteal cysts of the knees; benign
paroxysmal positional vertigo; bipolar disorder;
posttraumatic stress disorder (PTSD); somatic
disorder[.]” Tr. 14. However, the ALJ determined that
Plaintiff's impairments did not meet or medically equal
the severity of a listed impairment. Tr. 15. At step four,
the ALJ concluded that Plaintiff has the residual functional
capacity to perform light work as defined in 20 C.F.R. §
416.967(b), with the following limitations:
[Plaintiff] is limited to no more than frequent climbing of
ramps and stairs. She is limited to no more than occasional
climbing of ladders, ropes, or scaffolds. She is limited to
no more than frequent stooping and crouching and no more than
occasional balancing, kneeling, and crawling. The claimant
must avoid moderate exposure to hazards, such as operational
control of moving machinery, hazardous machinery, and
unprotected heights. The claimant can understand and carry
out simple instructions in a work environment with few, if
any workplace changes. She is limited to only occasional
interaction with the general public and coworkers.
Tr. 16. The ALJ concluded that Plaintiff is unable to perform
any past relevant work. Tr. 22. However, at step five the ALJ
found that there are jobs that exist in significant numbers
in the national economy that Plaintiff can perform, such as
“routing clerk, ” “inspector/hand packager,
” and “shipping and receiving weigher.” Tr.
23. Thus, the ALJ concluded that Plaintiff is not disabled.
reviewing court must affirm the Commissioner's decision
if the Commissioner applied proper legal standards and the
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g);Batson v. Comm'r of Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence” means “more than a
mere scintilla, but less than 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 is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id.
court must weigh the evidence that supports and detracts from
the ALJ's conclusion. Lingenfelter v. Astrue,
504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The
reviewing court may not substitute its judgment for that of
the Commissioner. Id. (citing Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see
also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001). Variable interpretations of the evidence are
insignificant if the Commissioner's interpretation is a
rational reading. Id.; see also Batson, 359 F.3d at
1193. However, the court cannot not rely upon reasoning the
ALJ did not assert in affirming the ALJ's findings. Bray,
554 F.3d at 1225-26 (citing SEC v. Chenery Corp.,
332 U.S. 194, 196 (1947)).
contends that the ALJ erred by (1) failing to address whether
Plaintiff's migraine headaches equal a listed impairment;
(2) rejecting Plaintiff's testimony; (3) discounting the
testimony of Plaintiff's treating physician's
assistant and treating psychiatric mental health nurse
practitioner; and (4) discounting the testimony of lay
witnesses. According to Plaintiff, because the ALJ erred, the
RFC and hypothetical posed to the VE do not include all of
her limitations. The Court finds that the ALJ erred in her
failure to consider whether Plaintiff's migraine
headaches equal a listed impairment and in discounting the
testimony of treating Physician's Assistant Brasher.
Thus, the Court remands the case to the ALJ for further
found that Plaintiff's migraines constituted a severe
impairment, yet did not meet or medically equal a listed
impairment. Tr. 14, 15. However, in her Step 3 discussion,
the ALJ failed to mention Plaintiff's migraines.
Plaintiff contends that the ALJ erred by failing to consider
whether Plaintiff's migraine headaches, either by
themselves or in combination with her other impairments,
equaled 20 C.F.R. § 404, Subpart P, App. 1, Listing
11.03, as it existed at the time of the ALJ's decision.
The Court agrees.
claimant has an impairment or combination of impairments that
meets or equals a condition outlined in the “Listing of
Impairments, ” then the claimant is presumed disabled
at step three, and the ALJ need not make any specific finding
as to his or her ability to perform past relevant work or any
other jobs. 20 C.F.R. § 404.1520(d). An ALJ must
evaluate the relevant evidence before concluding that a
claimant's impairments do not meet or equal a listed
impairment. Lewis v. Apfel, 236 F.3d 503, 512 (9th
Cir. 2001). A boilerplate finding is insufficient to support
a conclusion that a claimant's impairment does not do so.
Id. (citing Marcia v. Sullivan, 900 F.2d
172, 176 (9th Cir. 1990) (holding that ALJ erred by failing
to consider evidence of equivalence)). However, the Ninth
Circuit has explained that, while an ALJ must discuss and
evaluate the evidence that supports her conclusion, it is not
required that she do so under the heading
“Findings.” Kennedy v. Colvin, 738 F.3d
1172, 1178 (9th Cir. 2013). “Moreover, ‘[a]n ALJ
is not required to discuss the combined effects of a
claimant's impairments or compare them to any listing in
an equivalency determination, unless the claimant presents
evidence in an effort to establish equivalence.'”
Id. (quoting Burch v. Barnhart, 400 F.3d
676, 683 (9th Cir. 2005)).
is no medical listing for migraines. However, Defendant
concedes that, at the time of the administrative
hearing, Listing 11.03 was the appropriate listing
for an equivalence analysis:
11.03 Epilepsy-nonconvulsive epilepsy (petit mal,
psychomotor, or focal), documented by detailed description of
a typical seizure pattern, including all associated
phenomena; occurring more frequently than once weekly in
spite of at least 3 months of prescribed treatment. With
alteration of awareness or loss of consciousness and
transient postictal ...