United States District Court, D. Oregon
DEBORAH J. GRAY, Plaintiff,
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.
L. Johnson and Sherwood J. Reese, Drew L. Johnson PC Of
Attorneys for Plaintiff.
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
OPINION AND ORDER
Michael H. Simon, United States District Judge.
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.
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
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.
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.
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. § 404.1520; 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
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
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.
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
(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.
The ALJ's Decision
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.
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).
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