United States District Court, D. Oregon
Katherine L. Eitenmiller and Brent Wells, Harder, Wells,
Baron & Manning, PC, Attorneys for Plaintiff.
J. Williams, United States Attorney, and Janice E.
Hébert, Assistant United States Attorney; United
States Attorney's Office, District of Oregon, Michael
Howard, Special Assistant United States Attorney, Office of
the General Counsel, Social Security Administration,
Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE
R. Pilcher seeks judicial review of the final decision of the
Commissioner of the Social Security Administration
(“Commissioner”) denying his applications for
Supplemental Security Income (“SSI”) and
Disability Insurance Benefits (“DIB”). Because
the Commissioner's decision is based on the proper legal
standards and the findings are supported by substantial
evidence, the decision is AFFIRMED.
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); Molina v. Astrue, 673 F.3d 1104, 1110 (9th
Cir. 2012). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion” and is more than a “mere
scintilla” of the evidence but less than a
preponderance. Id. at 1110-11 (quotation omitted).
The Court must uphold the ALJ's findings if they
“are supported by inferences reasonably drawn from the
record[, ]” even if the evidence is susceptible to
multiple rational interpretations. Id. at 1110. The
Court may not substitute its judgment for that of the
Commissioner. Batson v. Comm'r of the Soc. Sec.
Admin., 359 F.3d 1190, 1193 (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) (quotation omitted).
Pilcher filed applications for DIB and SSI on October 6,
2011, alleging disability as of December 31, 2010. AR 123,
151. Born in October 1969, Mr. Pilcher was 41 years old on
the alleged disability onset date and 45 at the time of the
last of four hearings on this matter. AR 47, 82, 96, 109. He
speaks English, graduated from high school, attended college
courses, and earned an associate's degree. AR 63-64, 521.
He alleges disability due to: chronic back pain, muscle
spasms, depression, and alcoholism. AR 123. The Commissioner
denied his application initially and upon reconsideration,
and he requested a hearing before an Administrative Law Judge
(“ALJ”). AR 104-05, 110-11. After an
administrative hearing that was followed by three
supplemental hearings, the ALJ found Mr. Pilcher not disabled
in a decision dated April 18, 2014. AR 25-34. The Appeals
Council denied Mr. Pilcher's subsequent request for
review on December 4, 2015. AR 2. The ALJ's decision thus
became the final decision of the Commissioner, and Mr.
Pilcher sought review in this Court.
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. §
432(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. § 404.920; Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. § 416.920(a)(4). The
five-step sequential process asks the following series of
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, 1100 (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 Mr. Pilcher had not engaged in substantial gainful
activity since December 31, 2010, the alleged onset date. AR
27. At step two, the ALJ concluded that Mr. Pilcher had the
following severe impairments: degenerative disc disease
(“DDD”), obesity, and substance addiction
disorder. Id. At step three, the ALJ determined that
Mr. Pilcher did not have an impairment or combination of
impairments that met or equaled a listed impairment. AR 29.
next assessed Mr. Pilcher's RFC and found that he could
perform light work except that he is able to stand and walk
for up to six hours per day; sit for up to six hours per day;
requires the option to alternate between sitting and standing
for no more than one hour at a time for each; is limited to
occasional climbing of ramps and stairs and should not climb
ladders, ropes, or scaffolds; frequent balancing and
kneeling; occasional stooping, crouching, and crawling; and
should not be exposed to hazards such as exposed moving
machinery or unprotected heights. AR 30.
four, the ALJ found that Mr. Pilcher could not perform his
past relevant work. AR 32. At step five, based on the
testimony of a vocational expert (“VE”), the ALJ
concluded that Mr. Pilcher could perform jobs that exist in
significant numbers in the national economy, including
telemarketer, document scanner, and parking lot cashier. AR
33. Accordingly, the ALJ found Mr. Pilcher not disabled. AR
Pilcher contends the ALJ made the following legal errors in
evaluating his case: (1) failing to order a consultative
examination in order to assess DDD in his back; (2)
improperly assessing the credibility of his symptom
testimony; (3) improperly assessing the medical opinions of
treating physician William M. Bailey, M.D., and examining
physician Maxine Hoggan, Psy.D.; and (4) finding his mental
impairment was not “severe” at step two; which
resulted in (5) further error at step five.
ALJ's Discretion in Ordering a ...