United States District Court, D. Oregon
WELLS KATHERINE EITENMILLER Harder Wells Baron & Manning,
PC Attorneys for Plaintiff
J. WILLIAMS United States Attorney RENATA GOWIE MICHAEL W.
PILE THOMAS M. ELSBERRY Attorneys for Defendant
OPINION AND ORDER
J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE.
Heather Ann Hirshon seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's
application for Supplemental Security Income (SSI) 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 and REMANDS
this matter for the immediate calculation and award of
protectively filed her application for SSI
benefits on April 24, 2013. Tr. 18. Plaintiff alleges
a disability onset date of April 24, 2013. Tr. 19.
Plaintiff's application was denied initially and on
reconsideration. An Administrative Law Judge (ALJ) held a
hearing on July 8, 2015. Tr. 18, 33-57. Plaintiff and a
vocational expert (VE) testified. Plaintiff was represented
by an attorney at the hearing.
31, 2015, the ALJ issued an opinion in which he found
Plaintiff is not disabled and, therefore, is not entitled to
benefits. Tr. 18-27. On August 12, 2015, Plaintiff requested
review by the Appeals Council. Tr. 13. On September 28, 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).
December 2, 2016, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner's decision.
was born on January 27, 1982. Tr. 26. Plaintiff was
thirty-three years old at the time of the hearing. Plaintiff
has limited education. Tr. 26. The ALJ found Plaintiff does
not have any past relevant work experience. Tr. 26.
alleges disability due to mastocytosis mast cell disorder,
swelling of throat, weakness, food intolerance, depression,
bone and joint pain, stomach pain, rashes all over her body,
low immune system, numbness in face and body, and memory
problems. Tr. 76.
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. 21-26.
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).
The Regulatory Sequential Evaluation
One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity (SGA). 20 C.F.R. § 416.920(a)(4)(I). See
also Keyser v. Comm'r of Soc. Sec., 648 F.3d 721,
724 (9th Cir. 2011).
Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments. 20 C.F.R. §
416.920(a)(4)(ii). See also Keyser, 648 F.3d at 724.
Three 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.
§ 416.920(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. § 416.920(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
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. § 416.920(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. § 416.920(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 (or the grids) 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. § 416.920(g)(1).
One the ALJ found Plaintiff has not engaged in substantial
gainful activity since April 24, 2013, Plaintiff's
application date. Tr. 20.
Two the ALJ found Plaintiff has the severe impairments of
obesity and mast cell disorder (mastocytosis-mastocytoma).
Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one
of the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1. Tr. 22. The ALJ found Plaintiff has the RFC to
perform the full range of medium work. Tr. 23.
Four the ALJ concluded transferability of job skills is not
an issue because Plaintiff does not have past relevant work
experience. Tr. 26.
on Plaintiff's age, education, work experience, and RFC,
the ALJ found at Step Five that Plaintiff can perform other
work in the national economy. Tr. 26-27. Thus, the ALJ
concluded Plaintiff is not disabled and, therefore, is not
entitled to benefits. Tr. 27.
contends the ALJ erred when he (1) failed to provide clear
and convincing reasons for discrediting Plaintiff's
testimony; (2) improperly discounted the medical opinion of
one of Plaintiff's treating physicians; (3) failed to
consider the side-effects of Plaintiff's medication when
assessing her ...