United States District Court, D. Oregon
MERRILL SCHNEIDER, Attorneys for Plaintiff.
J. WILLIAMS United States Attorney RENATA GOWIE Assistant
United States Attorney, MICHAEL W. PILE Acting Regional Chief
Counsel MICHAEL S. HOWARD Special Assistant United States
Attorney Attorneys for Defendant.
OPINION AND ORDER
J. BROWN United States Senior District Judge.
Brenda Kay Ellis seeks judicial review of the final decision
of the Commissioner of the Social Security Administration
(SSA) in which she denied Plaintiff's application for
Social Security Disability Benefits (DIB) under Title XVI of
the Social Security Act. This Court has jurisdiction to
review the Commissioner's final decision pursuant to 42
U.S.C. § 405(g).
reasons that follow, the Court REVERSES the
decision of the Commissioner, REMANDS for
further consideration, and DISMISSES this
previously filed for SSI benefits on November 30, 2010, and
alleged a disability onset date of January 1, 2000. Tr.
Plaintiff's application was denied initially and on
reconsideration. Tr. 87. A prior Administrative Law Judge
(ALJ) held a hearing on October 11, 2012. Tr. 41-58.
Plaintiff was represented by an attorney at the hearing. On
November 16, 2012, the prior ALJ issued an opinion in which
he found Plaintiff was not disabled and, therefore, was not
entitled to benefits. Tr. 87-96. Plaintiff did not appeal
that decision, which then became the final decision of the
Commissioner. Tr. 18.
February 12, 2013, Plaintiff protectively filed the current
application for benefits in which she alleges a disability
onset date of December 31, 2000. Tr. 18. Plaintiff's
application was denied initially and on reconsideration. An
ALJ held a hearing on October 28, 2015. Tr. 59-83. Plaintiff
and a vocational expert (VE) testified. Plaintiff was
represented by an attorney at the hearing. On May 1, 2015,
the ALJ issued an opinion in which he found Plaintiff is not
disabled and, therefore, is not entitled to benefits. Tr.
18-35. On July 6, 2015, Plaintiff requested review by the
Appeals Council. Tr. 14. On November 9, 2016, the Appeals
Council denied Plaintiff's request to review the
ALJ's decision, and the ALJ's decision became the
final decision of the Commissioner. Tr. 1-4. See Sims v.
Apfel, 530 U.S. 103, 106-07 (2000).
January 13, 2017, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner's May 1, 2015, final
was born on September 13, 1966. Tr. 34. Plaintiff was
forty-eight years old at the time of the hearing. Plaintiff
has limited education. Tr. 34. The ALJ found Plaintiff did
not have any past relevant work experience. Tr. 34.
alleges disability due to depression, enlarged lymph nodes,
cysts in the fatty tissue behind her heart, bronchitis,
post-traumatic stress disorder (PTSD), anxiety, insomnia,
Castleman's disease, and high cholesterol. Tr. 111.
as noted, Plaintiff does not challenge the ALJ's summary
of the medical evidence. After carefully reviewing the
medical records, this Court adopts the ALJ's summary of
the medical evidence. See Tr. 21-34.
initial burden of proof rests on the claimant to establish
disability. Molina v. Astrue, 674 F.3d 1104, 1110
(9th Cir. 2012). To meet this burden a claimant must
demonstrate her inability “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). The ALJ must
develop the record when there is ambiguous evidence or when
the record is inadequate to allow for proper evaluation of
the evidence. McLeod v. Astrue, 640 F.3d 881, 885
(9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459-60 (9th Cir. 2001)).
district court must affirm the Commissioner's decision if
it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g). See also Brewes v. Comm'r of
Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is “relevant evidence that a
reasonable mind might accept as adequate to support a
conclusion.” Molina, 674 F.3d. at
1110-11 (quoting Valentine v. Comm'r Soc. Sec.
Admin., 574 F.3d 685, 690 (9th Cir. 2009)). It is more
than a mere scintilla [of evidence] but less than a
preponderance. Id. (citing Valentine, 574
F.3d at 690).
is responsible for evaluating a claimant's testimony,
resolving conflicts in the medical evidence, and resolving
ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591
(9th Cir. 2009). The court must weigh all of the evidence
whether it supports or detracts from the Commissioner's
decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d
1194, 1198 (9th Cir. 2008). Even when the evidence is
susceptible to more than one rational interpretation, the
court must uphold the Commissioner's findings if they are
supported by inferences reasonably drawn from the record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir.
2012). The court may not substitute its judgment for that of
the Commissioner. Widmark v. Barnhart, 454 F.3d
1063, 1070 (9th Cir. 2006).
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
of Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011).
See also Parra v. Astrue, 481 F.3d 742, 746 (9th
Cir. 2007); 20 C.F.R. § 404.1520. Each step is
One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity. 20 C.F.R. § 404.1520(a)(4)(I). See also
Keyser, 648 F.3d at 724.
Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments. Stout v.
Comm'r Soc. Sec Admin., 454 F.3d 1050, 1052 (9th
Cir. 2006). See also 20 C.F.R. §§
404.1509, 404.1520(a)(4)(ii); Keyser, 648 F.3d at
Three the Commissioner must determine whether a
claimant's impairments meet or equal one of the listed
impairments and are so severe that they preclude substantial
gainful activity. The claimant is disabled if the
Commissioner determines the claimant's impairments meet
or equal one of the listed impairments that the Commissioner
acknowledges are so severe as to preclude substantial gainful
activity. 20 C.F.R. § 404.1520(a)(4)(iii). See also
Keyser, 648 F.3d at 724. The criteria for the listed
impairments, known as Listings, are enumerated in 20 C.F.R.
part 404, subpart P, appendix 1 (Listed Impairments).
Commissioner proceeds beyond Step Three, she must assess the
claimant's residual functional capacity (RFC). The
claimant's RFC is an assessment of the sustained,
work-related physical and mental activities the claimant can
still do on a regular and continuing basis despite her
limitations. 20 C.F.R. § 404.1520(e). See also
Social Security Ruling (SSR) 96-8p. “A 'regular and
continuing basis' means 8 hours a day, for 5 days a week,
or an equivalent schedule." SSR 96-8p, at *1. In other
words, the Social Security Act does not require complete
incapacity to be disabled. Taylor v. Comm'r of Soc.
Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir.
2011)(citing Fair v. Bowen, 885 F.2d 597, 603 (9th
Cir. 1989)). The assessment of a claimant's RFC is at the
heart of Steps Four and Five of the sequential analysis when
the ALJ is determining whether a claimant can still work
despite severe medical impairments. An improper evaluation of
the claimant's ability to perform specific work-related
functions "could make the difference between a finding
of 'disabled' and 'not disabled.'" SSR
96-8p, at *4.
Four the claimant is not disabled if the Commissioner
determines the claimant retains the RFC to perform work she
has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
Commissioner reaches Step Five, she must determine whether
the claimant is able to do any other work that exists in the
national economy. 20 C.F.R. § 404.1520(a)(4)(v). See
also Keyser, 648 F.3d at 724-25. Here the burden shifts
to the Commissioner to show a significant number of jobs
exist in the national economy that the claimant can perform.
Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d
1068, 1071 (9th Cir. 2010). The Commissioner may satisfy this
burden through the testimony of a VE or by reference to the
Medical-Vocational Guidelines set forth in the regulations at
20 C.F.R. part 404, subpart P, appendix 2. If the
Commissioner meets this burden, the claimant is not disabled.
20 C.F.R. § 404.1520(g)(1).
found the presumption of continuing nondisability as a result
of the adjudication of Plaintiff's prior November 30,
2010, application was rebutted by the submission of new and
material evidence. The ALJ, however, concluded the record ...