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Gray v. Berryhill

United States District Court, D. Oregon

February 9, 2018

DEBORAH J. GRAY, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          Drew L. Johnson and Sherwood J. Reese, Drew L. Johnson PC Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney, United States Attorney's Office, District of Oregon Martha A. Boden, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon, United States District Judge.

         Deborah Gray seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Because the Commissioner's decision was not based on the proper legal standards and the findings were not supported by substantial evidence, the decision is REVERSED and REMANDED for immediate payment of benefits.

         STANDARD OF REVIEW

         The 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).

         Where 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.

         BACKGROUND

         A. Plaintiff's Applications

         Ms. Gray filed applications for DIB and SSI in March 2010, alleging disability as of June 25, 2008. AR 93. The claims were denied initially and upon reconsideration, and Ms. Gray did not timely file a request for hearing. AR 11. In May 2011, Ms. Gray applied for DIB and SSI, again alleging an onset date of June 25, 2008. AR 118, 200-01. The applications were denied initially and on reconsideration, and this time Ms. Gray timely requested hearing before an Administrative Law Judge (“ALJ”), which was held on June 13, 2013. AR 30-91. After the hearing, ALJ Elizabeth Watson found Ms. Gray not disabled in a decision dated June 27, 2013. AR 11-21. After the Appeals Council rejected Ms. Gray's request for review, she filed an action in this court, Gray v. Comm'r Soc. Sec. Admin., No. 6:14-cv-01552-BR. In that action, the parties stipulated to remand the case for further proceedings to reconsider the opinions of Sharon Beickel, Ph.D., and state agency physician Joshua Boyd, which ALJ Watson did not consider in her decision. AR 626-27, 639-40. A second hearing was convened on remand on May 25, 2016, this time before ALJ Ted W. Neiswanger. AR 562-600. In a decision dated September 15, 2016, an ALJ again found that Ms. Gray was not disabled. AR 539-551. The decision became the final decision of the Commissioner when the Appeals Council declined to assume jurisdiction of the remanded case on its own motion. See 20 C.F.R. § 404.984(c)-(d). Ms. Gray now seeks review in this Court.

         Born in August 1961, Ms. Gray was 46 years old on the alleged disability onset date and 54 at the time of the second administrative hearing. AR 92. She speaks English, and stated she attended school through the ninth grade, but did not obtain a GED. AR 35, 214. She alleges disability due to: degenerative disc disease of the lumbar spine, depression, tendonitis, and chronic obstructive pulmonary disease (“COPD”). AR 104.

         B. The Sequential Analysis

         A 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. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. § 404.1520(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). 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. 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). 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). 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). 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. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. § 404.1520(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). 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). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
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). 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. §§ 404.920(a)(4)(v), 404.1560(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).

         The 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 (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). 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.

         C. The ALJ's Decision

         The ALJ performed the sequential analysis. At step one, the ALJ found Ms. Gray met the insured status requirements for DIB through December 31, 2013, and had not engaged in substantial gainful activity since the alleged onset date, July 25, 2008. AR 541. At step two, the ALJ concluded that Ms. Gray had the following severe impairments: degenerative disc disease and degenerative joint disease of the lumbar spine; depression related to chronic pain; COPD; and “an alcohol use disorder in remission since 2012.” Id. At step three, the ALJ determined that Ms. Gray did not have an impairment or combination of impairments that met or equaled a listed impairment. AR 542.

         The ALJ next assessed Ms. Gray's RFC and found that she could perform light work with the following caveats: she can lift 20 pounds occasionally and ten pounds frequently; sit, stand, and walk for six hours in an eight-hour day; occasionally push and pull with the right upper extremity; occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; must avoid even moderate exposure to hazards; can understand only simply instructions; can perform only simple, routine work tasks consistent with a General Educational Development (“GED”) reasoning level of two and a Specific Vocational Preparation (“SVP”) level of two. AR 544; see Dictionary of Occupation Titles (“DOT”), available at 1991 WL 645958 (4th ed. 1991).

         At step four, the ALJ found that Ms. Gray could not perform her past relevant work of clothing sorter or home attendant. AR 549. At step five, the ALJ concluded that Ms. Gray could perform jobs that exist in significant numbers in the national economy, including electronics worker, laundry articles ...


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