United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
Paul J. Papak, United States Magistrate Judge
Rita Flynn ("Plaintiff) seeks judicial review of the
Commissioner of Social Security's
("Commissioner") decision denying her application
for Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI") under Titles
II and XVI of the Social Security Act ("Act"). This
Court lias jurisdiction over Plaintiffs action pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). I have considered
the parties' briefs and all evidence in the
administrative record. For the reasons set forth below, the
Commissioner's final decision regarding DIB should be
AFFIRMED and the Commissioner's final decision regarding
SSI should be REVERSED and REMANDED for an award of benefits.
protectively filed an application for DIB and SSI on January
29, 2013, alleging disability beginning January 1, 2013.
Plaintiffs date last insured was June 30, 2010. Following a
denial of benefits, Plaintiff requested a hearing before an
ALJ. On July 10, 2015, ALJ John Michaelsen held a hearing.
Plaintiff was represented by counsel and testified; however,
a Vocational Expert ("VE") did not testify. On July
29, 2015, the ALJ issued a decision finding Plaintiff not
disabled and the Appeals Council subsequently denied
Plaintiffs request for review. Plaintiff appealed the
ALJ's decision and this action followed.
establish disability within the meaning of the Act, a
claimant must demonstrate an "inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected ... to last for a continuous period of not less than
12 months." 42 U.S.C. § 423(d)(1)(A). The
Commissioner has established a five-step sequential process
for determining whether a claimant has made the requisite
demonstration. See Bowen v. Yuckert, 482 U.S. 137,
140 (1987); see also 20 C.F.R. §§
404.1520(a)(4); 416.920(a)(4). At the first four steps of the
process, the burden of proof is on the claimant; only at the
fifth and final step does the burden of proof shift to the
Commissioner. See Tackett v. Apfel, 180F.3d 1094,
1098 (9th Cir. 1999).
first step, the ALJ considers the claimant's work
activity, if any. See Bowen, 482 U.S. at 140;
see also 20 C.F.R. §§ 404.1520(a)(4)(i);
416.920(a)(4)(i). If the ALJ finds that the claimant is
engaged in substantial gainful activity, the claimant will be
found not disabled. See Bowen, 482 U.S. at 140;
see also 20 C.F.R. §§ 404.1520(a)(4)(i);
416.920(b). Otherwise, the evaluation will proceed to the
second step, At the second step, the ALJ considers the
medical severity of the claimant's impairments. See
Bowen, 482 U.S. at 140-141; see also 20 C.F.R.
§§ 404.1520(a)(4)(H); 416.920(a)(4)(ii). An
impairment is "severe" if it significantly limits
the claimant's ability to perform basic work activities
and is expected to persist for a period of twelve months or
longer. See Bowen, 482 U.S. at 141; see
also 20 C.F.R. §§ 404.1520(c); 416.921(a). The
ability to perform basic work activities is defined as
"the abilities and aptitudes necessary to do most
jobs." 20 C.F.R. § 404.1521(b); see also
Bowen, 482 U.S. at 141. If the ALJ finds that the
claimant's impairments are not severe or do not meet the
duration requirement, the claimant will be found not
disabled. See Bowen, 482 U.S. at 141; see
also 20 C.F.R. §§ 404.1520(a)(4)(H),
404.1520(c); 416.909. Nevertheless, it is well established
that "the step-two inquiry is a de minimis
screening device to dispose of groundless claims."
Smolen v. Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996)
(citing Bowen, 482 U.S. at 153-54). "An
impairment or combination of impairments can be found
'not severe' only if the evidence establishes a
slight abnormality that has 'no more than a minimal
effect' on an individual[']s ability to work."
Id., quoting Social Security Ruling
("SSR") 85-28, 1985 SSR LEXIS 19 (1985), If the
claimant's impairments are severe, the evaluation will
proceed to the third step, at which the ALJ determines
whether the claimant's impairments meet or equal
"one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Bowen, 482 U.S.
at 141; see also 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d); 416.920(a)(4)(iii). If the
claimant's impairments are equivalent to one of the
impairments enumerated in 20 C.F.R. § 404, subpt. P,
app. 1, the claimant will conclusively be found disabled.
See Bowen, 482 U.S. at 141; see also 20
C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d);
claimant's impairments are not equivalent to one of the
enumerated impairments, between the third and the fourth
steps the ALJ is required to assess the claimant's
residual functional capacity ("RFC"), based on all
the relevant medical and other evidence in the claimant's
case record. See 20 C.F.R. § 404.1520(e);
416.945(b)-(c). The RFC is an estimate of the claimant's
capacity to perform sustained, work-related physical and/or
mental activities on a regular and continuing basis,
despite the limitations imposed by the claimant's
impairments. See 20 C.F.R. § 404.1545(a);
see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2,
fourth step of the evaluation process, the ALJ considers the
RFC in relation to the claimant's past relevant work.
See Bowen, 482 U.S. at 141; see also 20
C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv).
If, in light of the claimant's RFC, the ALJ determines
that the claimant can still perform his or her past relevant
work, the claimant will be found not disabled. See
Bowen, 482 U.S. at 141; see also 20 C.F.R.
§§ 404.1520(a)(4)(iv), 404.1520(a)(4)(iv),
404.1520(f); 416.920(a)(4)(iv). In the event the claimant is
no longer capable of performing his or her past relevant
work, the evaluation will proceed to the fifth and final
step, at which the burden of proof shifts, for the first
time, to the Commissioner, At the fifth step of the
evaluation process, the ALJ considers the RFC in relation to
the claimant's age, education, and work experience to
determine whether a person with those characteristics and RFC
could perform any jobs that exist in significant numbers in
the national economy. See Bowen, 482 U.S. at 142;
see also 20 C.F.R. §§ 404.1520(a)(4)(v),
404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v). If the
Commissioner meets her burden to demonstrate the existence in
significant numbers in the national economy of jobs capable
of being performed by a person with the RFC assessed by the
ALJ between the third and fourth steps of the five-step
process, the claimant is found not to be disabled. See
Bowen, 482 U.S. at 142; see also 20 C.F.R.
§§ 404.1520(a)(4)(v), 404, 1520(g), 404.1560(c),
404.1566, 416.960(c). A claimant will be found entitled to
benefits if the Commissioner fails to meet that burden at the
fifth step. See Bowen, 482 U.S. at 142; see
also 20 C.F.R. §§ 404.1520(a)(4)(v),
reviewing court must affirm an Administrative Law Judge's
decision if the ALJ applied proper legal standards and his or
her findings are supported by substantial evidence in the
record. 42 U.S.C. § 405(g); Batson v. Comm'r
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
Substantial evidence is "more than a mere scintilla. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466
F.3d 880, 882 (9th Cir. 2006)).
court must review the record as a whole, "weighing both
the evidence that supports and the evidence that detracts
from the Commissioner's conclusion." Id.
(quoting Reddick v. Chafer, 157 F.3d 715, 720 (9th Cir.
1998)). The court may not substitute its judgment for that of
the Commissioner. See Id. (citing Robbins, 466 F.3d
at 882); see also Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). Moreover, the court may not rely
upon its own independent findings of fact in determining
whether the ALJ's findings are supported by substantial
evidence of record. See Connett v. Bamhart, 340 F,
3d 871, 874 (9th Cir. 2003) (citing SEC v. Chenety
Corp., 332 U.S. 194, 196 (1947)). Variable
interpretations of the evidence are insignificant if the
Commissioner's interpretation is rational. Burch v.
Bamhart, 400 F.3d 676, 679 (9th Cir. 2005). If the
ALJ's interpretation of the evidence is rational, it is
immaterial that the evidence may be "susceptible [of]
more than one rational interpretation." Magallanes
v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (citing
Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir.
the evidence before the ALJ is subject to more than one
rational interpretation, we must defer to the ALJ's
conclusion. Batson, 359 F.3d at 1198 (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
Administration did not invoke in making its decision."
Stout v. Comm'r Soc. Sec, Admin., 454 F.3d 1050,
1054 (9th Cir. 2006) (citation omitted). 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).
was 25 years old on her alleged onset date of January 1,
2013. Tr. 34. Plaintiff completed high school, but
dropped out of college after her first semester. Tr. 223.
Prior to her alleged disability onset date, Plaintiff worked
as an artist, sales clerk, and office worker. Tr. 224.
Plaintiff alleges that she is unable to work due to bipolar
disorder; depression; anxiety disorder; attention deficit
disorder; back pain; asthma; "borderline schizoid;"
Post-Traumatic Stress Disorder ("PTSD"); panic
attacks; and anti-social disorder. Tr. 222.
OF ALJ FINDINGS
first step of the five-step sequential evaluation process,
the ALJ found that Plaintiff had not engaged in substantial
gainful activity since January 1, 2013, the alleged onset
date. Tr. 24.
second step, the ALJ found that Plaintiff suffered from the
following severe impairments: depression, bipolar disorder,
and anxiety. Tr. 25.
third step, the ALJ concluded that Plaintiffs impairments do
not meet or equal the criteria for any condition in the
Listing of Impairments, 20 C.F.R, Pt. 404, Subpt. P, App. 1.
Tr. 22. Because Plaintiff did not establish disability at
step three, the ALJ continued to evaluate how Plaintiffs
impairments affected her ability to work during the relevant
period. The ALJ found Plaintiff had the residual functional
capacity ("RFC") to perform the full range of work
at all exertional levels, except she is "limited to
simple, repetitive, routine tasks." Tr. 27.
fourth step, the ALJ concluded that Plaintiff has no past
relevant work. Tr. 34. At step five, the ALJ found Plaintiff
not disabled under section 204.00 of the Medical-Vocational
Guidelines because she could engage in the full range of
unskilled work at all exertional levels subject to solely
non-exertional limitations. Tr. 35.
alleges the ALJ erred by failing to: (1) provide clear and
convincing reasons to disregard Plaintiffs subjective symptom
testimony; (2) provide specific and germane reasons to reject
"other" medical source opinions; (3) provide
sufficient reasons to reject the medical opinions of Wayne
Taubenfeld, Ph.D. and Carmen MacMillan, Psy.D, ; and (4)
adequately address Plaintiffs social functioning at step