United States District Court, D. Oregon
J. Meserow Attorney for Plaintiff.
J. Williams, U.S. Attorney Janice E. Hébert, Asst.
U.S. Attorney Lars J. Nelson Special Assistant U.S. Attorney
Office of the General Counsel Attorneys for Defendant.
OPINION & ORDER
JELDERKS, U.S. MAGISTRATE JUDGE
Linn Kimble (“Plaintiff”) brings this action
pursuant to 42 U.S.C. §§ 405(g) and 1381a seeking
judicial review of a final decision of the Commissioner of
Social Security (“the Commissioner”) denying her
application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) under Titles II and XVI of the Social
Security Act (“the Act”). For the reasons that
follow, the Commissioner's decision is reversed and this
case is remanded for further proceedings.
filed her application for DIB and SSI on April 18, 2012,
alleging disability beginning September 30, 2007. Tr. 13,
180. After Plaintiff's claim was denied initially and on
reconsideration, a hearing was convened on February 27, 2014,
before Administrative Law Judge (“ALJ”) Paul
Robeck. Tr. 29-63. The ALJ issued a decision on March 21,
2014, finding Plaintiff not disabled. Tr. 8-24. The decision
became the final decision of the Commissioner on July 21,
2015, when the Appeals Council denied Plaintiff's
subsequent request for review. Tr. 1-6. Plaintiff now appeals
to this Court for review of the Commissioner's final
July 31, 1982, Plaintiff was 25 years old on the initial
alleged onset date. Tr. 22, 180. Plaintiff has an 8th grade
education and has not completed her GED. Tr. 38, 202. She has
past relevant work as a fast food cashier, a machine
operator, a security guard, and doing
“production” at a thrift store. Tr. 202.
Plaintiff alleges disability due to scoliosis, chronic back
pain, anxiety, posttraumatic stress disorder
(“PTSD”), and depression. Tr. 16, 44, 66.
engages in a five-step sequential inquiry to determine
whether a claimant is disabled within the meaning of the Act.
20 C.F.R. §§ 404.1520, 416.920. The five step
sequential inquiry is summarized below, as described in
Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir.
One. The Commissioner determines whether the claimant is
engaged in substantial gainful activity. A claimant who is
engaged in such activity is not disabled. If the claimant is
not engaged in substantial gainful activity, the Commissioner
proceeds to evaluate the claimant's case under step two.
20 C.F.R. §§ 404.1520(b), 416.920(b).
Two. The Commissioner determines whether the claimant
has one or more severe impairments. A claimant who does not
have any such impairment is not disabled. If the claimant has
one or more severe impairment(s), the Commissioner proceeds
to evaluate the claimant's case under step three. 20
C.F.R. §§ 404.1520(c), 416.920(c).
Three. Disability cannot be based solely on a severe
impairment; therefore, the Commissioner next determines
whether the claimant's impairment “meets or
equals” one of the presumptively disabling impairments
listed in the Social Security Administration
(“SSA”) regulations. 20 C.F.R. Part 404, Subpart
P, Appendix 1. A claimant who has an impairment that meets a
listing is presumed disabled under the Act. If the
claimant's impairment does not meet or equal an
impairment listed in the listings, the Commissioner's
evaluation of the claimant's case proceeds under step
four. 20 C.F.R. §§ 404.1520(d), 416.920(d).
Four. The Commissioner determines whether the claimant
is able to perform work he or she has done in the past. A
claimant who can perform past relevant work is not disabled.
If the claimant demonstrates he or she cannot do past
relevant work, the Commissioner's evaluation of
claimant's case proceeds under step five. 20 C.F.R.
§§ 404.1520(f), 416.920(f).
Five. The Commissioner determines whether the claimant
is able to do any other work. A claimant who cannot perform
other work is disabled. If the Commissioner finds claimant is
able to do other work, the Commissioner must show that a
significant number of jobs exist in the national economy that
claimant is able to do. The Commissioner may satisfy this
burden through the testimony of a vocational expert
(“VE”), or by reference to the Medical-Vocational
Guidelines. 20 C.F.R. Part 404, Subpart P, Appendix 2. If the
Commissioner demonstrates that a significant number of jobs
exist in the national economy that the claimant is able to
do, the claimant is not disabled. If the Commissioner does
not meet the burden, the claimant is disabled. 20 C.F.R.
§§ 404.1520(g)(1), 416.920(g)(1).
steps one through four of the sequential inquiry, the burden
of proof is on the claimant. Tackett, 180 F.3d at
1098. At step five, the burden shifts to the Commissioner to
show the claimant can perform jobs that exist in significant
numbers in the national economy. Id.
first step of the disability analysis, the ALJ found
Plaintiff met the insured status requirements through
December 31, 2009, and had not engaged in substantial gainful
activity since the alleged onset date, September 30, 2007.
second step, the ALJ found Plaintiff had the following severe
impairments: scoliosis, anxiety, PTSD, and depression. Tr.
third step, the ALJ found Plaintiff did not have an
impairment or combination of impairments that met or equaled
a presumptively disabling impairment set out in the Listings.
20 C.F.R. Part 404, Subpart P, App. 1; Tr. 13-14.
proceeding to the fourth step, the ALJ assessed
Plaintiff's residual functional capacity
(“RFC”). He found Plaintiff retained the capacity
[P]erform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a). She can lift and carry up to 10 pounds. When
seated, she should be allowed to stand for 30 minutes with no
interruption in the work process. She is limited to simple,
repetitive tasks consistent with unskilled work.
fourth step of the disability analysis, the ALJ found
Plaintiff was unable to perform any past relevant work. Tr.
fifth step, the ALJ found that Plaintiff retained functional
capacity required to perform jobs that existed in significant
numbers in the national economy. Tr. 23. Relying on the
VE's testimony, the ALJ cited semiconductor wafer
breaker, addresser, and document sorter as examples of work
Plaintiff could perform. Tr. 23. Based upon the conclusion
that Plaintiff could perform such work, the ALJ found that
Plaintiff was not disabled within the meaning of the Act,
from September 30, 2007, through the date of this decision.
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). Claimants bear the initial burden of
establishing disability. Roberts v. Shalala, 66 F.3d
179, 182 (9th Cir. 1995), cert. denied, 517 U.S.
1122 (1996). The Commissioner bears the burden of developing
the record, DeLorme v. Sullivan, 924 F.2d 841, 849
(9th Cir. 1991), and bears the burden of establishing that a
claimant can perform “other work” at step five of
the disability analysis process. Tackett, 180 F.3d
district court must affirm the Commissioner's decision if
it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g); see also Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
“Substantial evidence means more than a mere scintilla
but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Id. The court must weigh all of
the evidence, whether it supports or detracts from the
Commissioner's decision. Martinez v. Heckler,807 F.2d 771, 771 (9th Cir. 1986). The ...