United States District Court, D. Oregon
DIANA S. MENGES, Plaintiff,
Commissioner of Social Security, Defendant,
FINDINGS AND RECOMMENDATION
Honorable Paul J. Papak United States Magistrate Judge
S. Menges ("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 has 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 SSI and DIB
should be REVERSED and REMANDED for an award of benefits.
protectively filed an application for DIB and SSI on May 30,
2013, alleging disability beginning November 7, 2011.
Plaintiffs date last insured was December 31, 2016. Following
a denial of benefits, Plaintiff requested a hearing before an
ALJ. On July 1, 2015, ALJ John Michaelsen held a video
hearing. Plaintiff was represented by counsel and testified,
as did a vocational expert ("VE"), On July 30,
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. YuckerU 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, 180 F.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, the ALJ considers the medical severity of the
Bowen, 482 U.S. at 140-141; see also 20 C.F.R.
§§ 404.1520(a)(4)(ii); 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)(ii),
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).
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(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
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), 404.1520(g), 416.960(c).
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 Edlundv. 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. Barnhart, 340 F.3d 871,
874 (9th Cir. 2003) (citing SEC v. Chenery Corp.,
332 U.S. 194, 196 (1947)). Variable interpretations of the
evidence are insignificant if the Commissioner's
interpretation is rational, Burch v. Barnhart, 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. 1984)).
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 45 years old on her alleged onset date of November 7,
2011. Tr. 34. Plaintiff dropped out of high school in
the tenth grade. Tr. 57. Prior to her alleged disability
onset date, Plaintiff worked as a house keeper,
"material handler, " and caregiver for the elderly.
Tr. 244. Plaintiff alleges that she is unable to work due to
a learning disability; arthritis in her neck, hands, and
knees; depression; congenital hearing loss; diabetes;
cholesterol; acid reflux; high blood pressure; and insomnia.
Tr, 224, SUMMARY 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 November 7, 2011, the alleged onset
date, Tr. 25.
second step, the ALJ found that Plaintiff suffered from the
following severe impairments: bilateral sensorineural hearing
loss; osteoarthritis; cervical degenerative disc disease;
early diabetes mellitus with mild neuropathy; obesity;
depression; and "a history of learning disorder."
Tr. 25. The ALJ found Plaintiffs hypertension to be a
non-severe impairment. Tr. 26.
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 26-28. 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 light work except she:
can frequently balance, climb or reach overhead, and
occasionally grasp, handle and Finger bilaterally. She would
also need to avoid concentrated exposure to vibration and
temperature extremes, and would need to avoid exposure to
loud noise in any work environment. The claimant is also
found to be limited to simple, repetitive, routine tasks.
fourth step, the ALJ concluded that Plaintiff could not
perform her past relevant work, Tr. 33. At step five, the ALJ
found Plaintiff could perform jobs existing in significant
numbers in the national economy, including dealer account
clerk, bakery line worker, and ...