United States District Court, D. Oregon
ROBIN L. HEINIG, Plaintiff,
NANCY A. BERRYHIIX, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION & ORDER
AIKEN UNITED STATES DISTRICT JUDGE.
Robin Heinig seeks judicial review of the final decision of
the Commissioner of Social Security
("Commissioner") denying disability and disability
insurance benefits pursuant to Title II of the Social
Security Act. For the reasons set forth below, the decision
of the Commissioner is AFFIRMED and this case is dismissed.
filed a Title II application for a period of disability and
disability insurance benefits on January 27, 2011. Tr. 508.
Plaintiff alleged disability beginning July 15, 2010.
Id. Her application was denied initially and upon
review. Id. Plaintiff appeared before an
Administrative Law Judge ("ALJ") at a hearing held
October 23, 2012. Id. On December 7, 2012, the ALJ
issued a decision finding Plaintiff not disabled.
Id. The Appeals Council denied review and Plaintiff
sought review before this Court in Heinig v.
Commissioner, 1:14-cv-1362- MC ("Heinig
7") . Id. In Heinig I, the parties
stipulated to a remand of the matter to the Commissioner for
further proceedings. On July 21, 2015, Judge Michael McShane
signed an order granted the stipulated remand and a judgment
December 10, 2015, the Appeals Council implemented this
Court's Order and directed the ALJ to (1) obtain
additional evidence concerning Plaintiffs impairments; (2)
further consider treating and non-treating source opinions as
appropriate; (3) further consider Plaintiffs maximum residual
functional capacity and provide rationale and citation to the
record; (4) obtain supplemental evidence from a vocational
expert to determine whether Plaintiff can perform her past
relevant work and/or other work in the national economy; and
(5) offer Plaintiff another opportunity for a hearing. Tr.
second hearing was held on May 9, 2016. Tr. 508. On June 9,
2016, the ALJ issued a decision finding Plaintiff not
disabled. Tr. 527. This appeal followed.
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, 648 F.3d
721, 724 (9th Cir. 2011).
The five-steps are; (1) Is the claimant presently working in
a substantially gainful activity? (2) Is the claimant's
impairment severe? (3) Does the impairment meet or equal one
of a list of specific impairments described in the
regulations? (4) Is the claimant able to perform any work
that he or she has done in the past? and (5) Are there
significant numbers of jobs in the national economy that the
claimant can perform?
Id. at 724-25; see also Bustamante v.
Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Bustamante, 262 F.3d at 953. The Commissioner bears
the burden of proof at step five. Id. at 953-54. 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." Tackett v. Apfel, 180
F.3d 1094, 1100 (9th Cir. 1999); 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.
performed the sequential analysis. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful
activity since the alleged onset date of July 15, 2010. Tr.
511. The ALJ determined that Plaintiff had the following
severe impairments: diabetes mellitus with neuropathy of the
feet; degenerative disc disease of the cervical spine, status
post-fusion; degenerative disc disease of the lumbar spine;
status-post bilateral hip replacement; and obesity.
Id. The ALJ determined that Plaintiffs severe
impairments did not meet or equal a listed impairment. Tr.
determined that Plaintiff had the RFC to perform light work
with the following additional restrictions: she must be
allowed to alternate between sitting and standing throughout
the day; no more than frequent crawling, crouching, kneeling,
stooping, balancing, or climbing of stairs or ramps; no more
than occasional climbing of ropes, ladders, and scaffolds; no
more than frequent overhead reaching bilaterally; and avoid
working around heights, moving machinery, and similar
hazards, Tr. 513.
found that Plaintiff was able to perform her past relevant
work as a call center supervisor. Tr. 525. In the
alternative, the ALJ found that Plaintiff could perform work
as a mail sorter, office helper, or storage facility rental
clerk, Tr. 527. Accordingly, the ALJ determined that
Plaintiff was not disabled, Id.
district court must affirm the Commissioner's decision if
the decision is based on proper legal standards and the legal
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm V, 359 F.3d
1190, 1193 (9th Cir. 2004). Substantial evidence "means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation and internal
quotation marks omitted), In reviewing the Commissioner's
alleged errors, this court must weigh "both the evidence
that supports and detracts from the [Commissioner's]
conclusion." Martinez v. Heckler, 807 F.2d 771,
772 (9th Cir. 1986). Variable interpretations of the evidence
are insignificant if the Commissioner's interpretation is
rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th
the evidence before the ALJ is subject to more than one
rational interpretation, we must defer to the ALJ's
conclusion. Batson, 359F.3datll98 (citing
Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.
1995)). A reviewing court, however, cannot affirm the
Commissioner's decision on a ground that the agency did
not invoke in making its decision. Stout v. Comm V,
454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court may not
reverse an ALJ's decision on account of an error that is
harmless. Id. at 1055-56. "[T]he burden of
showing that an error is harmful normally falls upon the
party attacking the agency's determination."
Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
asserts that the ALJ erred by (1) improperly rejecting
Plaintiffs subjective symptom testimony; (2) improperly
rejecting the medical opinion of treating physician Alan
Mersch, D.O.; (3) improperly rejecting the opinion of
physician's assistant Emily Rogers; (4) improperly
categorizing Plaintiffs past relevant work; (5) failing to
follow the remand instructions of the Appeals Council; and
(6) failing to meet the Commissioner's burden at step
five based on an improper formulation of Plaintiff s RFC.
Plaintiffs Subjective Symptom Testimony
asserts that the ALJ erred by rejecting her subjective
symptom testimony. To determine whether a claimant's
testimony is credible, an ALJ must perform a two-stage
analysis. 20 C.F.R. § 416.929. The first stage is a
threshold test in which the claimant must produce objective
medical evidence of an underlying impairment that could
reasonably be expected to produce the symptoms alleged.
Molina v. Astme,674 F.3d 1104, 1112 (9th Cir.
2012). At the second stage of the credibility analysis,
absent evidence of malingering, the ALJ must provide clear