United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Aiken United States District Judge
Regina Debra Farrester brings this action pursuant to the
Social Security Act ("Act"), 42 U.S.C. §
405(g), to obtain judicial review of a final decision of the
Acting Commissioner of Social Security
("Commissioner"). The Commissioner found plaintiff
not disabled under the Act and denied her application for
Disability Insurance Benefits ("DIB"). For the
reasons set forth below, the Commissioner's decision is
applied for disability insurance benefits in July 2011,
alleging disability since September 2010 due to tumors, high
blood pressure, fatigue, cysts, migraines, vision impairment,
depression, and anxiety. She suffers from ongoing pain from
lipomas and lipoma removal, She has reported problems with
labile blood pressure, experiencing blood pressure spikes and
drops with "multiple episodes of passing out." Tr.
1290. There is no diagnosed cause of the blood pressure
problems, but doctors have suggested it is possibly stress
and anxiety related and is "also probably complicated by
her alcohol use." Tr. 1369. After an unfavorable first
decision by the ALJ and remand by the Appeals Council,
plaintiff appeals another unfavorable decision. The Appeals
Council denied review of the present decision.
ALJ's disability determination should be upheld unless it
contains [harmful] legal error or is not supported by
substantial evidence." Garrison v. Colvin, 759
F.3d 995, 1009 (9th Cir. 2014). "Substantial evidence
means more than a mere scintilla, but less than a
preponderance; it is such relevant evidence as a reasonable
person might accept as adequate to support a
conclusion." Id. (quoting Lingenfelier v.
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)) (internal
quotation marks omitted). The record must be evaluated as a
whole, and the court must weigh "both the evidence that
supports and the evidence that detracts from the
Commissioner's conclusion[.]" Id. The court
"may not affirm simply by isolating a specific quantum
of supporting evidence." Id. If the evidence is
subject to more than one interpretation but the
Commissioner's decision is rational, the Commissioner
must be affirmed, because "the court may not substitute
its judgment for that of the Commissioner." Edhtnd
v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
initial burden of proof rests upon plaintiff to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, plaintiff 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).
Secretary has established a five-step sequential evaluation
process for determining whether a person is disabled."
Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (citing
20 C.F.R. §§ 404.1520, 416.920). At step one, the
ALJ found plaintiff has not engaged in "substantial
gainful activity" since the alleged disability onset
date of September 1, 2010. Tr. 14; 20 C.F.R. §§
404.1520(a)(4)(f), (b). At step two, the ALJ found that
plaintiff had "the following severe impairments: history
of lipomas with residual pain, reactive hypertension, anxiety
disorder NOS, and alcohol use disorder[, ]" Tr. 14;
see also 20 C.F.R. § 404.1520(a)(4)(h). At step
three, the ALJ determined plaintiffs impairments, whether
considered singly or in combination, did not meet or equal
"one of the listed impairments" that the
Commissioner acknowledges are so severe as to preclude
substantial gainful activity. Tr. 14; see also 20
C.F.R. § 404.1520(a)(4)(iii).
including the substance abuse disorder, the claimant
has the residual functional capacity [("RFC")] to
perform a range of light work as defined in 20 C[.F.R.
§] 404.1567(b) except she can perform tasks involving no
more than 6 hours of standing/walking, and no more than 6
hours of standing/walking, and no more than 6 hours of
sitting in an 8-hour workday (with normal breaks). She can
occasionally climb stairs or ramps, but she must avoid
climbing ladders, ropes, or scaffolds. She can occasionally
balance, stoop, kneel, crouch, or crawl. She is limited to
low-stress jobs that avoid assembly line pace. Such jobs may
involve few, if any, workplace changes. She can be expected
to engage in little, if any, independent decision making in
her work duties. She must not be responsible for the safety
of others. She must avoid driving. She must avoid even
moderate exposure to workplace hazards, such as unprotected
heights and moving machinery. She is limited to simple
routine work tasks that do not exceed a specific vocational
preparation (SVP) level of 2, or a GED reasoning level of 2.
Due to the effects of mixed medication and alcohol, the
claimant would likely be off-task in even simple work tasks
more than 10% of the workday, and will likely miss work
several days each month.
Tr. 16 (emphasis added). At step four, the ALJ found that
plaintiff could not "perform any past relevant
work." Tr. 20; see also 20 C.F.R. §
404.1520(a)(4)(iv). At step five, the ALJ concluded that
there were no jobs in the national economy that plaintiff
could perform and subsequently found plaintiff disabled.
Id. at 20-21; see also 20 C.F.R. §
then reevaluated plaintiffs RFC to determine whether
plaintiffs drug or alcohol abuse ("DAA") was
material to the disability determination. The ALJ decided
that, if DA A were not an issue, plaintiffs residual
functional capacity ("RFC") would remain the same
except that she would no longer miss several days of work
each month or be off-task more than ten percent of time. Tr.
21. With those limitations eliminated, the ALJ found that
"there would be a significant number of jobs in the
national economy that the claimant could perform[, ]"
including soft goods sorter, clerical checker, and folder.
Tr. 23. Finally, the ...