United States District Court, D. Oregon
Merrill Schneider, Schneider, Kerr, and Robichaux, Of
Attorneys for Plaintiff.
J. Williams, United States Attorney, and Janice E.
Hébert, Assistant United States Attorney, Kathy Reif,
Special Assistant United States Attorney, Office of General
Counsel, Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
Sandra Lorraine Harris seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying her
application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) pursuant to the Social Security Act. For
the following reasons, the Commissioner's 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
filed an application for DIB and SSI on August 1, 2011,
alleging disability beginning on March 3, 2009.
Administrative Record (“AR”) 199, 206. In her
application, reconsideration, and appeal council petition,
Plaintiff specifically alleged disability due to back pain,
osteoarthritis, chronic obstructive pulmonary disease, acid
reflux, depression, and anxiety. AR 75-76, 89-90, 104-05,
120-22, 226, 382, 402. The Commissioner denied
Plaintiff's applications initially on March 7, 2012, and
upon reconsideration on February, 4, 2013. AR 134-39, 140-43,
150-52, 153-54. Thereafter, she requested a hearing before
Administrative Law Judge (“ALJ”) Rudolph Murgo.
AR 155-57. An administrative hearing was held on July 3,
2014. AR 33. After leaving the record open for additional
evidence, on July 22, 2014, the ALJ found Plaintiff was not
disabled from March 3, 2009, to July 22, 2014. AR 19. The
Appeals Council denied Plaintiff's review, making the
ALJ's decision the final decision of the Commissioner. AR
1. “[A] civil action may be brought only after . . .
[the Commissioner] has made a final decision on the
claim.” Bass v. Soc. Sec. Admin., 872 F.2d
832, 833 (9th Cir. 2012). 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? 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
found that Plaintiff met the insured status requirements of
the Social Security Act through December 31, 2013 based on
her previous quarters of employment. AR 19-21. To receive
DIB, Plaintiff needs to establish disability on or before
that date. AR 19. SSI benefits are not dependent on insured
status. The ALJ then applied the sequential process. AR
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since her alleged disability
onset date of March 3, 2009. AR 21. At step two, the ALJ
found that the record established that Plaintiff suffered
from osteoarthritis, obesity, and an anxiety disorder at the
level of a severe impairment resulting in significant
work-related functional limitations. AR 21. The ALJ further
found that the record contained information on prescription
drug abuse and marijuana use, but that this substance abuse
did not result in work-related functional limitations and did
not qualify as severe. AR 22.
three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or equaled
the severity of one of the specific impairments listed in the
regulations. Id. The ALJ also found that
Plaintiff's osteoarthritis and obesity, separately and in
combination, did not meet any criteria of § 1.04
(disorders of the spine) or any other listing, and that no
physician had concluded that Plaintiff met any listing
criteria. AR 22; see 20 C.F.R. § 404, Subpt. P,
App'x 1, § 1.04 (2014). The ALJ found further that
Plaintiff's mental impairments and symptoms did not meet
the listings for § 12.06 (anxiety and
obsessive-compulsive disorders) or § 12.09 (substance
abuse disorders). AR 22; see 20 C.F.R. § 404,
Subpt. P, App'x 1, §§ 12.06, 12.09 (2014).
While Plaintiff has mild restrictions in activities of daily
living and moderate difficulties in social functioning
according to the ALJ's findings, paragraph B of §
12.06 requires two findings of “marked”
difficulties in order to meet the listed criteria. AR 22;
see 20 C.F.R. § 404, Subpt. P, App'x 1,