United States District Court, D. Oregon
JOEL A. GUEMBES, Plaintiff,
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.
J. Wall, Of Attorney for Plaintiff.
J. Williams, United States Attorney, and Janice E.
Hébert, Assistant United States Attorney, United
States Attorney's Office; Jeffrey E. Staples, Special
Assistant United States Attorney, Office of General Counsel,
Social Security Administration, Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon, District Judge.
Guembes (“Plaintiff”) seeks judicial review of
the final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying his
application for Supplemental Security Income
(“SSI”) pursuant to the Social Security Act.
Because the Commissioner's decision is not based on the
proper legal standards and the findings are not supported by
substantial evidence, the decision is REVERSED and REMANDED
for further proceedings consistent with this opinion.
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 his application for SSI that is the subject of this
case on November 3, 2011, alleging disability beginning on
April 1, 2006. AR 318. Born October 4, 1989, Plaintiff was 16
years old when he suffered a traumatic brain injury in an
automobile accident, and 22 years old on his alleged
disability onset date. AR 426, 137. Plaintiff alleges
“short and long term memory defects, difficulty
learning new material, poor impulse control, poor
concentration, impaired balance, and depression.” AR
393. The Commissioner denied Plaintiff's application
initially on January 30, 2012, and on reconsideration on May
15, 2012. AR 146, 158.
25, 2012, Plaintiff requested a hearing to review the denial
of SSI. AR 200. Administrative Law Judge (“ALJ”)
Paul G. Robeck presided over a hearing on June 13, 2013. AR
208. The ALJ issued a decision finding that Plaintiff was not
disabled on June 24, 2013. AR 160. The ALJ found Plaintiff
had severe impairments of cognitive disorder, mood disorder
and polysubstance dependence. AR 165. The ALJ found Plaintiff
was limited to jobs requiring reasoning level of one and
noise level of two, could not perform work requiring
balancing, working at heights, or climbing ladders, ropes,
and scaffolds, and that Plaintiff should avoid concentrated
exposure to hazards. AR 167. Plaintiff requested a review of
the ALJ's decision by the Appeals Council on July 2,
2013. AR 268. The Appeals Council vacated and remanded the
ALJ's decision on November 7, 2013, after finding several
of the jobs the ALJ had identified exceeded Plaintiff's
residual function capacity (“RFC”) because they
required a reasoning level of two. AR 184. The Appeals
Council directed the ALJ to consider new evidence; evaluate
Plaintiff's impairments with the techniques described in
20 CFR § 416.920(a); evaluate Plaintiff's RFC by
providing appropriate rationale and specific reference to
evidence in the record; obtain supplemental evidence from a
vocational expert (“VE”) to clarify the effect of
Plaintiff's limitations; and identify appropriate jobs
for Plaintiff and state the incidence of such jobs in the
national economy. AR 185.
second hearing was held in front of ALJ Robeck on August 11,
2015. AR 298. On October 9, 2015, the ALJ issued his second
decision, and again found Plaintiff not disabled. AR 14. The
ALJ made findings consistent with his first findings
regarding Plaintiff's severe impairments, inability to
perform certain tasks, and an RFC limiting Plaintiff to a
reasoning level of one; however, this time the ALJ found that
Plaintiff was limited to a noise level of three. AR 19-23.
Plaintiff requested that the Appeals Council review the
ALJ's second decision. AR 10. The Appeals Council,
finding no reason under their rules to review the ALJ's
decision, denied Plaintiff's request for review on August
31, 2016, and the ALJ's decision became the final
decision of the Commissioner. AR 1. Plaintiff seeks review of
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.” 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),