United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Timothy Harber, Jr., brings this action for judicial review
of the final decision of the Commissioner of Social Security
(“Commissioner”) terminating plaintiff's
supplemental security income (“SSI”). The
Commissioner's decision should be reversed and remanded
for further proceedings.
February 2009, plaintiff was found disabled as of April 1,
2001. On April 27, 2010, the Commissioner determined
plaintiff was no longer disabled. Tr. 128. That determination
was upheld after a reconsideration hearing by a state agency
Disability Hearing Officer. Tr. 152. The plaintiff then filed
a written request for review by an Administrative Law Judge
(“ALJ”). Tr. 172. Following the hearing on
February 21, 2012, the ALJ issued a decision finding
plaintiff not disabled. Tr. 74. Plaintiff appealed that
decision, and the Appeals Council remanded with instructions
for the ALJ to more fully develop the record regarding
medical statements about plaintiff's abilities despite
his impairments. Tr. 95. The Appeals Council also instructed
the ALJ to further consider plaintiff's residual
functional capacity (“RFC”). Tr. 95.
remand, the ALJ held a second hearing on September 12, 2013.
Tr. 30. At the hearing, both plaintiff and a vocational
expert testified. On October 23, 2013, the ALJ issued a
decision finding plaintiff not disabled. Tr. 8. Plaintiff
requested review, and the Appeals Council denied the request.
Tr. 1. Plaintiff then brought this action.
was eighteen years old on the date of redetermination. Tr.
393. Plaintiff has no past relevant work. Tr. 104. Plaintiff
graduated high school with the help of special education
support. Tr. 391. Plaintiff alleges disability due to a
diagnosis of Asperger's disorder and pervasive
development disorder. Tr. 393.
part of a school-related work experience course, plaintiff
worked at a flower shop. Tr. 394. Plaintiff also participated
in a Youth Training Program (“YTP”). Tr. 394.
“The purpose of the program is to prepare youth with
disabilities for employment or career related post secondary
education or training.” Tr. 394. Through the YTP,
plaintiff began a training program for custodial work through
the Portland Rehabilitation Center. Tr. 395. After plaintiff
completed training, he was hired to work part-time on
weekends. Tr. 31. Since June 2012, plaintiff has maintained
part-time employment as a janitor at the East Portland
Community Center. Tr. 34.
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. Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). 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.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation and internal
quotations omitted). The court must weigh both the evidence
that supports and detracts from the [Commissioner's]
conclusions.” Martinez v. Heckler, 807 F.2d
771, 772 (9th Cir. 1986). 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).
initial burden of proof rests upon the claimant to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the 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).
Commissioner has established a seven-step evaluation process
set forth in 20 C.F.R. § 416.994 to determine whether a
claimant continues to be disabled. See Khampunbuan v.
Astrue, 333 Fed.Appx. 217, 218 (9th Cir. 2009). At step
one, the Commissioner must determine whether the claimant has
an impairment or combination of impairments that meets the
criteria of a listed impairment set forth in 20 C.F.R. part
404, subpart P, app. 1. If the claimant does, his disability
continues. 20 C.F.R. § 416.994(b)(5)(i).
claimant's impairment or combination of impairments does
not meet or equal an impairment listed, the second step
requires the Commissioner to determine whether medical
improvement has occurred. 20 C.F.R. § 416.994(b)(5)(ii).
If medical improvement has occurred, the analysis proceeds to
the third step; if not, the analysis skips to the fourth
medical improvement has occurred, the third step requires the
Commissioner to determine whether medical improvement is
related to the ability to work; i.e., whether the
recipient's RFC has increased since the most recent
favorable decision. 20 C.F.R. § 416.994(b)(5)(iii). If
medical improvement is not related to the claimant's
ability to work, the analysis proceeds to step four; if it
is, it proceeds to step five. Id.
medical improvement has not occurred or if it is not related
to the recipient's ability to work, the fourth step
requires the Commissioner to determine whether an exception
applies. 20 C.F.R. § 416.994(b)(5)(iv). Under the first
group of exceptions, the Commissioner can find a claimant no
longer disabled even though he has not medically improved if
he is able to engage in substantial gainful activity. 20
C.F.R. § 416.994(b)(3). If one of these exceptions
applies, the analysis proceeds to step five. 20 C.F.R. §
416.994(b)(5)(iv). Under the second group of exceptions, in
certain situations not applicable here, the Commissioner can
find a recipient no longer disabled without finding medical
improvement or an ability to engage in substantial gainful
activity. 20 C.F.R. § 416.994(b)(4). If none of the
exceptions apply, the recipient continues to be disabled. 20
C.F.R. § 416.994(b)(5)(iv).
fifth step requires the Commissioner to determine whether all
the recipient's current impairments in combination are
“severe, ” which means they significantly limit
the claimant's ability to do basic work activities. 20
C.F.R. § 416.994(b)(5)(v). If not, the claimant is no
longer disabled. Id.
claimant's current impairments in combination are severe,
the sixth step requires the Commissioner to determine whether
the claimant has a sufficient RFC, “based on all [his]
current impairments, ” to perform any past relevant
work. 20 C.F.R. § 416.994(b)(5)(vi). If so, he is no
longer disabled. Id.
claimant is unable to do his past work or if he has none, the
seventh step requires the Commissioner to determine, using
the claimant's RFC, whether the claimant can perform any
other substantial gainful work. 20 C.F.R. §
416.994(b)(5)(vii). If not, the claimant continues to be
one of the seven-step sequential evaluation process outlined
above, the ALJ found plaintiff was diagnosed with
Asperger's disorder and pervasive development disorder,
with plaintiff's impairments meeting or medically
equaling a listing in 20 C.F.R. Part 404, Subpart P, Appendix
1. Tr. 13. At step two, the ALJ determined medical
improvement occurred as of April 27, 2010, due to a decrease
in the medical severity of plaintiff's ...