United States District Court, D. Oregon
Katherine L. Eitenmiller and Mark A. Manning, Harder, Wells,
Baron & Manning, 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, Sarah L.
Martin, Special Assistant United States Attorney, Office of
General Counsel, Social Security Administration, Of Attorneys
OPINION AND ORDER
Michael H. Simon, United States District Judge
Jewell-Greene (“Plaintiff”) 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”). For the reasons discussed below, the
Commissioner's decision is REVERSED and REMANDED for
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
protectively filed applications for DIB and SSI on May 2,
2013, alleging disability beginning on January 2, 2013. AR
95, 105. She was born on March 23, 1964, and was 49 years old
at the time she filed her application. AR 94, 104. She
alleged disability due to migraine headaches, fibromyalgia,
and chronic fatigue syndrome. AR 95, 105. The
Commissioner denied her applications both initially and upon
reconsideration; thereafter, she requested a hearing before
an Administrative Law Judge (“ALJ”). AR 102, 112,
123, 134, 138, 142, 148, 151, 153. An administrative hearing
was held on May 12, 2015. AR 24. On June 24, 2015, the ALJ
issued a decision finding that Plaintiff was not disabled
under the Social Security Act for both DIB and SSI. AR 24-34.
On July 7, 2015, Plaintiff requested a review of the ALJ
decision by the Appeals Council, and on December 18, 2015,
the appeals council denied her request for review and the
ALJ's decision became final. AR 6-10, 18-19. 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, 2015. AR 26. He
noted that Plaintiff must establish disability on or before
that date in order to be entitled to DIB. AR 24. The ALJ
then applied the sequential analysis. AR 25-34.
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since January 2, 2013, the
alleged onset date. AR 26. At step two, the ALJ found that
Plaintiff's migraine headaches, fibromyalgia, and chronic
fatigue syndrome all constituted severe impairments, meaning
that they more than minimally affected her ability to perform
basic work activities. Id. The ALJ also noted that
the medical evidence indicated a history of depression and
anxiety; however, pursuant to the disability regulations for
evaluating mental disorders, the ALJ found these mental
impairments to be non-severe. AR 27. The ALJ further found
that there was no indication that Plaintiff's history of
other various health issues resulted in any functional
limitations and found those to be non-severe as well. AR 28.
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 listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. AR 28-29. The ALJ next
assessed Plaintiff's RFC as capable of performing light
work as defined in 20 C.F.R. § 404.1567(b) and §
416.967(b), and he concluded that Plaintiff could stand or
walk for only two hours out of an eight-hour work-day and any
time spent off-task could be accompanied by normal breaks. AR
30. At step four, based on that determination and the
recommendation of the vocational expert (“VE”),
the ALJ found that after Plaintiff's alleged onset date
of disability she was still capable of performing past
relevant work (“PRW”) as a data entry clerk, a
bookkeeper, or an office manager, as those positions were
generally performed. AR 33-34. Accordingly, the ALJ did not
make a step five finding and ruled that Plaintiff was not
under a disability from the alleged onset date through the
date of the ALJ's decision. AR 34.
seeks review of the determination that she was not disabled.
She argues that the ALJ erred by: (1) failing to provide
clear and convincing reasons supported by substantial
evidence when discounting Plaintiff's symptom testimony;
(2) discrediting the opinion of Dr. Jotham Lefford, her
treating physician, and instead assigning greater weight to
the reviewing state agency physicians; and (3) assessing a
flawed RFC, erroneously concluding that she retained the
ability to perform the requirements of her PRW.
Credibility and Symptom Testimony