United States District Court, D. Oregon
R.J. Porter, JP Law PC, Attorney for Plaintiff.
J. Williams, Interim United States Attorney, and Janice E.
Hébert, Assistant United States Attorney, United
States Attorney's Office, District of Oregon, Ryan Lu,
Special Assistant United States Attorney, Office of the
General Counsel, Social Security Administration, Attorneys
OPINION AND ORDER
Michael H. Simon United States District Judge.
D. Whitman seeks judicial review of the final decision of the
Commissioner of the Social Security Administration
(“Commissioner”) denying her applications for
Supplemental Security Income (“SSI”) and
Disability Insurance Benefits (“DIB”). Because
the Commissioner's decision is not based on the proper
legal standards and the findings are not supported by
substantial evidence, the decision is REVERSED and REMANDED
for further proceedings.
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
Whitman filed applications for DIB and SSI on October 10,
2012, alleging disability as of January 1, 2008. AR 19,
110-11. Born in April 1987, Ms. Whitman was 20 years old on
the alleged disability onset date and 26 at the time of the
hearing. AR 19, 112. She speaks English and graduated from
high school. AR 23, 66. She alleges disability due to
obsessive-compulsive disorder (“OCD”),
depression, and anxiety. AR 86. The Commissioner denied her
application initially and upon reconsideration, and she
requested a hearing before an Administrative Law Judge
(“ALJ”). AR 104-05, 110-11. After an
administrative hearing held on September 14, 2014, the ALJ
found Ms. Whitman not disabled in a decision dated November
24, 2014. AR 19-43. The Appeals Council denied Ms.
Whitman's subsequent request for review on April 4, 2016.
AR 1-3. The ALJ's decision thus became the final decision
of the Commissioner, and Ms. Whitman sought review in this
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? 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
performed the sequential analysis. AR 21-43. At step one, the
ALJ found Ms. Whitman had not engaged in substantial gainful
activity since January 1, 2008, the alleged onset date. AR
21. At step two, the ALJ concluded that Ms. Whitman had the
following severe impairments: asthma, depression, anxiety,
OCD, and obesity. AR 21. At step three, the ALJ determined
that Ms. Whitman did not have an impairment or combination of
impairments that met or equaled a listed impairment. AR 22.
next assessed Ms. Whitman's RFC and found that she could
perform medium work except that she must avoid all exposure
to hazards and must avoid concentrated exposure to fumes,
odors, dusts, and gases; and she is limited to unskilled work
with only incidental contact with the public and co-workers.
AR 25. At step four, the ALJ found that Ms. Whitman could not
perform her past relevant work. AR 41. At step five, based on
the testimony of a vocational expert (“VE”), the
ALJ concluded that Ms. Whitman could perform jobs that exist
in significant numbers in the national economy, including
linen supply room worker and laundry worker. AR 42.
Accordingly, the ALJ found Ms. Whitman not disabled.
Whitman contends the ALJ made the following errors in
evaluating her case: (1) improperly assessing her symptom
testimony; (2) improperly assessing the medical opinion
evidence; (3) failing properly to credit lay testimony; (4)
finding she did not meet a listing at step two; and (5)
formulating an inaccurate RFC, which led to further error at
Plaintiff's Symptom Testimony
is a two-step process for evaluating the credibility of a
claimant's testimony about the severity and limiting
effect of the claimant's symptoms. Vazquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the
ALJ “must determine whether the claimant has presented
objective medical evidence of an underlying impairment
‘which could reasonably be expected to produce the pain
or other symptoms alleged.'” Lingenfelter v.
Astrue, 504 F.3d 1029, 1036 (9th Cir. 2007) (quoting
Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.
1991) (en banc)). When doing so, the claimant “need not
show that her impairment could reasonably be expected to
cause the severity of the symptom she has alleged; she need
only show that it could reasonably have caused some degree of
the symptom.” Smolen v. Chater, 80 F.3d 1273,
1282 (9th Cir. 1996).
“if the claimant meets this first test, and there is no
evidence of malingering, ‘the ALJ can reject the
claimant's testimony about the severity of her symptoms
only by offering specific, clear and convincing reasons for
doing so.'” Lingenfelter, 503 F.3d at 1036
(quoting Smolen, 80 F.3d at 1281). It is “not
sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence
suggests the complaints are not credible.” Dodrill
v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those
reasons must be “sufficiently specific to permit the
reviewing court to ...