United States District Court, D. Oregon
BARRY B. FROST, Plaintiff,
NANCY A. BERRYHILL, Commissioner of Social Security Defendant.
Richard F. McGinty, McGinty & Belcher, Of Attorney for
J. Williams, United States Attorney, and Renata Gowie,
Assistant United States Attorney Ryan Ta Lu, Special
Assistant United States Attorney Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge
Barry B. Frost (“Plaintiff) seeks judicial review of
the decision of Social Security Commissioner denying his
application for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security
Act. After a review of the record, the Court reverses and
remands the Commissioner's decision for further
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 1226.
A. Plaintiff's Application
was born on August 6, 1953, was 55 years old as of the date
of his alleged disability onset, and is currently 64 years
old. Plaintiff lives in Corvallis, Oregon. AR 110. He lives
alone and receives the majority of his care from his partner,
Mary. He holds a four-year degree and has past relevant work
as a Database Software Developer. AR 118. Plaintiff filed for
DIB on September 6, 2012, citing primarily discogenic and
degenerative disc disorders and secondarily affective mood
disorders, alleging a disability onset date of July 1, 2009.
AR 110, 214. Upon notice that his application was denied,
Plaintiff filed for reconsideration in March 2013. AR 138.
Plaintiff filed a request for an administrative hearing after
subsequent denial upon reconsideration. AR 145. Plaintiff
received an administrative hearing in 2014 before an
administrative law judge (“ALJ”), and a
supplemental hearing several months later. The ALJ then
issued a partially favorable opinion, finding Plaintiff
disabled as of June 18, 2014, but not earlier. AR 15-26.
Plaintiff appealed the ALJ's partially-favorable decision
to the Appeals Council, who denied review, making the
ALJ's determination the final decision of the agency. AR
1. Plaintiff challenges the ALJ's decision before this
Court. Plaintiff argues that the ALJ erred in determining
that Plaintiff was not disabled until June 18, 2014, because
Plaintiff was disabled as of the alleged disability onset
date, July 1, 2009.
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. §
423(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 (DIB), 416.920
(SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
Each step is potentially dispositive. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1. Is the claimant performing “substantial gainful
activity?” 20 C.F.R. §§ 404.1520(a)(4)(i),
416.920(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, 416.910. 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), 416.920(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), 416.920(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), 416.921(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, 416.909. If
the claimant does not have a severe impairment, the analysis
ends. 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(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), 416.920(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), 416.920(e), 416.945(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), 416.920(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. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such
work, he or she is disabled. Id.
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, 1098 (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, 416.966 (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), 416.920(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
one, the ALJ found Plaintiff was not currently engaged in
substantially gainful activity (“SGA”) and has
not been since July 1, 2009. Because Plaintiff had not been
performing SGA, the inquiry proceeded to step two. At step
two, the ALJ determined, based on the medical record and
Plaintiffs testimony, that Plaintiff suffers from impairments
that are “severe” within the meaning of the
Social Security Regulations (“SSR”). The ALJ
found that Plaintiffs cervical degenerative disc disease and
mild left shoulder bursitis significantly limit Plaintiffs
ability to perform basic work activities. The ALJ also
determined that Plaintiffs alleged, remaining diagnoses of
hypertension, migraines, heel injury, allergic rhinitis,
depression, and adjustment disorder were not severe per the
three, the ALJ concluded that Plaintiffs impairments did not
meet or equal the listed impairments in 20 C.F.R. 404.1521.
The ALJ then assessed Plaintiffs RFC to determine
Plaintiff's functional limitations necessary for step
four. In this assessment, the ALJ concluded that
Plaintiff's subjective pain testimony regarding his
impairments was not fully credible before June 18, 2014. The
ALJ then prepared two RFC analyses, one for Plaintiff's
abilities from July 1, 2009 until June 18, 2014, and one for
June 18, 2014 through the date of the ALJ's decision,
April 10, 2015. At step four, the ALJ found both of
Plaintiff's RFCs barred him from continuing past relevant
at step five, based on the testimony of a vocational expert
(“VE”), the ALJ concluded that from July 1, 2009
until July 18, 2014, Plaintiff possessed transferable skills
and could perform the work of a data clerk, DOT 209.687-010.
Because Plaintiff is of advanced age, the ALJ evaluated the
degree of vocational adjustment Plaintiff would undergo.
Relying on the VE testimony, the ALJ found Plaintiff would
undergo “little to no” vocational adjustment.
This finding led the ALJ to conclude that Plaintiff was not
disabled until July 18, 2014. The ALJ found that as of July
18, 2014, however, based in part on the chiropractic
recommendation for a medial branch block, that Plaintiff
would be unable to continue work as a data clerk. Thus, the
ALJ found Plaintiff disabled as of that date.
challenges the ALJ's determination finding Plaintiff
disabled as of June 18, 2014. Plaintiff argues that the ALJ
erred by: (A) discrediting Plaintiff's subjective pain
testimony without valid reasons; (B) failing to identify
Plaintiff's transferable skills or degree of vocational
adjustment; (C) determining Plaintiff's RFC without
including certain functional limitations; and (D) arbitrarily
selecting Plaintiff's disability onset date. The Court
discusses each of Plaintiff's contentions in turn.
is a two-step process for evaluating a claimant's
testimony regarding the severity and limiting effect of the
claimant's symptoms. Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009). “First, the ALJ must
determine whether the claimant has presented objective
medical evidence of an underlying impairment ‘which
could reasonably be expected to produce the pain or other
symptoms alleged.'” Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting
Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.
1991) (en banc)). When doing so, “the claimant need not
show that her impairment could reasonably be expected to
cause the severity of the symptom she has alleged; she need
only show that it could reasonably have caused some degree of
the symptom.” Smolen v. Chater, 80 F.3d 1273,
1282 (9th Cir. 1996).
if the claimant meets this first test, and there is no
evidence of malingering, ‘the ALJ can reject the
claimant's testimony about the severity of her symptoms
only by offering specific, clear and convincing reasons for
doing so.'” Lingenfelter, 504 F.3d at 1036
(quoting Smolen, 80 F.3d at 1281). It is “not
sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence
suggests the complaints are not credible.” Dodrill
v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those
reasons must be “sufficiently specific to permit the
reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant's testimony.” Orteza v.
Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
argues that the ALJ erred in his credibility analysis because
the ALJ failed to provide clear and convincing reasons to
discount Plaintiff's testimony. The ALJ cited
Plaintiff's retirement reasons, activities of daily
living (“ADL”), and lack of objective medical
evidence. AR 21. The ALJ's credibility decision may be
upheld overall even if not all of the ALJ's reasons for
rejecting the claimant's testimony are upheld. See
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190,
1197 (9th Cir. 2004). The ALJ may not, however, make a
negative credibility finding “solely because” the