United States District Court, D. Oregon
HEATHER C. CAPISTRANO, Plaintiff,
COMMISSIONER, Social Security, Defendant.
OPINION AND ORDER
Honorable Paul Papak United States Magistrate Judge.
Heather Capistrano protectively filed this action on December
9, 2016, seeking judicial review of the Commissioner of
Social Security's final decision denying her applications
for disability insurance benefits ("DIB") and
supplemental security income ("SSI") under Titles
II and XVI of the Social Security Act (the "Act"),
This court has jurisdiction over Capistrano's action
pursuant to 42 U.S, C. § 405(g) and 1383(c)(3). The
parties have consented to jurisdiction by U.S. Magistrate
Judge in this matter. Docket No. 11.
argues that the ALJ erred in (1) assessing the credibility of
her symptom allegations; and (2) evaluating the medical
opinions of two treating physicians. I have considered the
parties' briefs and all of the evidence in the
administrative record. For the reasons set forth below, the
Commissioner's final decision is reversed, and this case
is remanded for further proceedings.
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. Yuckert, 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, 180F.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), 404.1520(b), 416.920(a)(4)(i), 416.920(b).
Otherwise, the evaluation will proceed to the second step.
second step, the ALJ considers the medical severity of the
claimant's impairments. See 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), 416.920(c). 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), 416.921(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), 416.920(a)(4)(iii), 416.920(c). 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),
416.920(d). 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 wiil 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), 416.920(a)(4)(iii), 416.920(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),
416.920(e), 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),
416.945(a); see also SSR 96-8p, 1996 SSR LEXIS 5
(July 2, 1996).
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), 416.9520(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), 416.920(f). 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 Commissioner.
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),
416.920(a)(4)(v), 416.920(g), 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, 416.920(a)(4)(v),
416.920(g), 416.960(c), 416, 966. 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), 416.920(a)(4)(v), 416.920(g).
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, See 42 U.S.C. § 405(g); see also
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190,
1193 (9th Cir. 2004). "'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." 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. Chater, 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 Edlund v. 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). 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).
OF ADMINISTRATIVE RECORD
was born on May 26, 1974. Tr. 67. Capistrano graduated from
high school and attended college for one year. Tr. 216. Prior
to her amended alleged disability onset date of September 14,
2012 (Tr. 44), Capistrano worked at a daycare and as a
cosmetics representative, although neither job constituted
past relevant work (Tr. 32, 61).
was referred to the Oregon Health Sciences University
Rheumatology department, where she was seen by Ajay Wanchu,
M, D,, on April 11, 2011. Dr, Wanchu diagnosed fibromyalgia
based on 14 positive tender points. Tr. 261-62.
13, 2011, Capistrano's treating physician, John Ward,
M.D., interpreted a recent CT scan which showed right-sided
sacroiliitis. Tr. 319. The doctor felt it was "more the
source of her pain." Id. Other diagnoses
included fibromyalgia, abnormal liver function, depression,
hypothyroidism, anxiety disorder, attention deficit disorder,
sleep apnea, gestational diabetes, GERD, and external otitis.
was evaluated by rheumatologist Michelle M. Ryan, M.D., in
December 2011. Tr. 482. The doctor noted that
Capistrano's pain had worsened 14 months prior, to the
extent Capistrano had difficulty walking. Dr, Ryan confirmed
the sacroiliitis diagnosis, and indicated it was possible
that Capistrano also had psoriatic arthritis. Tr. 485-86.
March 15, 2013, Capistrano was treated by Patricia
O'Hare, M, D. She assessed chronic plaque-like psoriasis
with psoriatic arthritis, based on observing 12% of
Capistrano's body surface area covered in psoriatic
plaques, and feet with fissures. Tr. 457.
physician, Brandon Markus, D.O., examined Capistrano and
produced a report on March 23, 2013. Tr. 452. Dr. Markus
diagnosed fibromyalgia based on 14 tender points, and he
included psoriatic arthritis as a diagnosis, although there
were no objective findings. Tr. 456. Dr. Markus opined that
Capistrano could stand/walk for six hours in a workday with
frequent position changes, she could lift 50 pounds
occasionally and 25 pounds frequently. Id.
February 2014, Capistrano had increased pain and anxiety
symptoms, in conjunction with the death of her mother and,
shortly thereafter, a divorce from her husband. Tr. 495.
March 2014, Dr. Ryan reported that Humira was not helpful in
treating Capistrano's psoriatic arthritis, but the
medication Enbrel seemed to help somewhat. Tr. 470.
Capistrano was observed to have "very deep
cracking" over the plantar area of her feet. Tr. 469.
Dr. Ryan additionally noted Capistrano was getting two Enbrel
injections per month to treat her sacroiliitis until her
health insurance ran out. Tr. 467.
began treatment at Corvallis Pain Management in December
2014. Tr. 522. She received a steroid injection to treat
sacroiliiac joint pain in February 16, 2015, which was
reported to be 50% helpful in relieving pain. Tr. 516-17. In
March 2015, Capistrano was discharged from the clinic for
aberrant behaviors including taking non-prescribed
medication, discontinued prescriptions, and not attending a
pill count meeting. Tr. 513.
Ward, in May 2015, noted that Capistrano had stopped taking
her pain medications in favor of taking hemp oil. Tr. 541.