United States District Court, D. Oregon
Wilborn, Wilborn Law Office, PC, Of Attorneys for Plaintiff.
J. Williams, United States Attorney, and Janice E. Hebert,
Assistant United States Attorney, United States
Attorney's Office, Sarah L. Martin, Special Assistant
United States Attorney, Office of General Counsel, Of
Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge
Gartner (“Plaintiff) seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying
Plaintiffs application for Supplemental Security Income
(“SSL) disability benefits under Title II of the Social
Security Act. For the following reasons, the Court reverses
the Commissioner's decision and remands for further
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 1226.
was born on April 20, 1964, to a woman addicted to many
different medications, and was adopted by her mother's
sister at an early age. AR 447. Plaintiff dropped out of
school in the tenth grade because she had trouble
concentrating. Since then, Plaintiff has struggled to
maintain employment and relationships. Following an abusive
marriage, Plaintiff became homeless and currently lives off
of food stamps and $50 per month that her adopted mother
sends her. Id. On the date of the hearing, Plaintiff
was living out of a tent in Bend, Oregon. AR 48.
21, 2014, Plaintiff filed her second application alleging
disability beginning the date of the application. AR 171.
Plaintiff requested a hearing after the application was
denied. After the hearing on January 7, 2015, Administrative
Law Judge (“ALJ”) John Michaelsen found Plaintiff
not disabled. AR 17-30. Plaintiff timely appealed ALJ
Michaelsen's decision to the Appeals Council and her
appeal was denied review on May 24, 2016, making the
ALJ's decision final. AR 1-7. This appeal followed.
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
denied Plaintiffs claim for benefits using the sequential
analysis. At step one, the ALJ noted that Plaintiff has not
engaged in substantial gainful activity since the application
date. AR 22. At step two, the ALJ found the following severe
impairments: anxiety disorder; depressive disorder;
post-traumatic stress disorder (“PTSD”);
attention deficit hyperactivity disorder
(“ADHD”); and a history of poly substance abuse.
AR 22-23. At step three, the ALJ found that
Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1. AR 23. The ALJ next assessed Plaintiffs RFC,
concluding that Plaintiff could perform work as follows:
“full range of work at all exertional levels. In
addition, the claimant is limited to simple, repetitive,
routine tasks requiring no more than occasional, brief
interaction with co-workers and the general public.” AR
25. At step five, the ALJ, with the testimony of a vocational
expert (“VE”), determined that Plaintiff could
not perform any past relevant work, but is able to perform
the job of hand packager, laundry sorter, or basket filler.
argues that the ALJ erred by: (1) failing to provide clear
and convincing reasons supported by substantial evidence to
discredit Plaintiffs symptom testimony; (2) failing properly
to credit the opinions of treating and examining medical
sources; (3) failing fully to credit the lay witness
statement; (4) failing properly to calculate Plaintiffs RFC
in regards to concentration, persistence, and pace; and (5)
failing to give a proper hypothetical question to the VE. The
Court addresses each issue in turn.
Plaintiff's Symptom Testimony
argues that the ALJ improperly discounted her subjective
symptom testimony when the ALJ determined that the evidence
suggests Plaintiff is not as limited as she alleges. There 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. Vasquez 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 conclude that the ALJ did not arbitrarily
discredit the claimant's testimony.” Ortez v.
Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
March 16, 2016, the Commissioner superseded Social Security
Ruling (“SSR”) 96-7p, governing the assessment of
a claimant's “credibility, ” and replaced it
with SSR 16-3p. See SSR 16-3p, available at
2016 WL 1119029. SSR 16-3p eliminates the reference to
“credibility, ” clarifies that “subjective
symptom evaluation is not an examination of an
individual's character, ” and requires the ALJ to
consider all of the evidence in an individual's record
when evaluating the intensity and persistence of symptoms.
Id. at *1-2. The Commissioner recommends that the
ALJ examine “the entire case record, including the
objective medical evidence and individual's statements
about the intensity, persistence, and limiting effects of
symptoms statements and other information provided by medical
sources and other persons; and any other relevant evidence in
the individual's case record.” Id. at *4.
The Commissioner recommends assessing: (1) the claimant's
statements made to the Commissioner, medical providers, and
others regarding the claimant's location, frequency and
duration of symptoms, the impact of the symptoms on daily
living activities, and other methods used to alleviate
symptoms; (2) medical source opinions, statements, and
medical reports regarding the claimant's history,
treatment, responses to treatment, prior work record, efforts
to work, daily activities, and other information concerning
the intensity, persistence, and limiting effects of an
individual's symptoms; and (3) non-medical source
statements, considering how consistent those statements are
with the claimant's statements about his or her symptoms
and other evidence in the file. See Id. at *6-7.
ALJ's credibility decision may be upheld overall even if
not all of the ALJ's reasons for discounting the
claimant's testimony are upheld. See Batson, 359
F.3d at 1197. The ALJ may not, however, make a negative
credibility finding “solely because” the
claimant's symptom testimony “is not substantiated
affirmatively by objective medical evidence.”
Robbins, 466 F.3d at 883.
administrative hearing, Plaintiff testified that she is not
able to work because she is paranoid and does not do well
around a lot of people. AR 49. Plaintiff testified that she
suffers from concentration issues, is always paranoid that
someone is behind her, she hears voices, is always stressed,
and has constant mood swings. AR 60-64. She testified she has
been on and off her medication because she cannot afford it
without insurance. AR 52-53. Plaintiff also testified to hand
and back numbness issues that have been untreated because she
cannot afford care. AR 66-67. With visible bruises and
abrasions, Plaintiff testified she had been beaten by an
ex-boyfriend two days before the hearing. AR 43, 64.
Regarding Plaintiffs drinking problem, she testified that she
drank to help her sleep and to calm herself. AR 64-65.
did not fully credit Plaintiffs statements regarding the
extent, severity, and limiting effects of her impairments. AR
26-27. The ALJ gave three reasons for discrediting Plaintiffs
claimed limitations: (1) Plaintiffs testimony was
inconsistent with the scope of the her reported activities of
daily living; (2) Plaintiffs treatment history and medication
are inconsistent with her poverty and disability claims; and
(3) Plaintiffs alcohol abuse likely affected her functioning.
Plaintiff argues that the ALJ's reasons were not
specific, clear, or convincing enough to discount Plaintiffs
Plaintiffs Daily Living Activities
did not fully credit Plaintiffs testimony, in part because of
her daily living activities. Even though Plaintiff is
homeless, the ALJ found that Plaintiff “is able to
complete her activities of daily living in spite of her
difficult living conditions.” AR 26. An ALJ may
discount a claimant's testimony if it is inconsistent
with the claimant's daily activities, or to show that the
activities “meet the threshold for transferable work
skills[.]” Orn, 495 F.3d at 639; Molina v.
Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). Although
“disability claimants should not be penalized for
attempting to lead normal lives in the face of their
limitations, ” a level of activity that is inconsistent
with claimed limitations has a bearing on the credibility of
a claimant's symptom testimony. Reddick v.
Chater, 157 F.3d 715, 722 (1998).
daily living activities include going to the community center
and the post office, going to the shelter for food, attending
appointments to find housing, spending time with friends,
word searches, reading, helping another homeless gentleman
who has only one leg, caring for a cat, and riding public
transportation. AR 26. The ALJ found these activities to be
inconsistent with Plaintiffs (1) alleged limitations from
mental health symptoms; (2) alleged limitations from
cognitive impairments; and (3) alleged social limitations.
Alleged Limitations from ...