United States District Court, D. Oregon
J. MESEROW Attorney for Plaintiff
J. WILLIAMS United States Attorney
GOWIE Assistant United States Attorney
MICHAEL W. PILE Acting Regional Director DIANA ANDSAGER
Special Assistant United States Attorney Social Security
Administration Attorneys for Defendant
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE
Raymond Bair seeks judicial review of a final decision of the
Commissioner of the Social Security Administration (SSA) in
which she denied Plaintiff's application for Disability
Insurance Benefits (DIB) under Title II of the Social
Security Act. This Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C.
reasons that follow, the Court REVERSES the
decision of the Commissioner and REMANDS
this matter for the immediate calculation and award of
filed applications for DIB on July 10, 2012, alleging a
disability onset date of March 5, 2011. Tr.
255.The application was denied initially and on
reconsideration. Tr. 109-33. An Administrative Law Judge
(ALJ) held a hearing on June 30, 2014. Tr. 69-108. Plaintiff
was represented at the hearing. Plaintiff and a vocational
expert (VE) testified. The ALJ issued a decision on July 18,
2014, in which he found Plaintiff is not disabled and,
therefore, is not entitled to benefits. Tr. 138-154. The
Appeals Council remanded for a second hearing. Tr. 159-62.
held a subsequent hearing on December 16, 2015. Tr. 40-68.
The ALJ issued a decision on January 27, 2016, in which he
again found Plaintiff is not disabled. Tr. 17-32. Pursuant to
20 C.F.R. § 404.984(d), that decision became the final
decision of the Commissioner on March 8, 2017, when the
Appeals Council denied Plaintiff's request for review.
Tr. 1-4. See also Sims v. Apfel, 530 U.S. 103,
was born in 1963 and was 51 years old at the time of the
hearing. Tr. 17, 47. Plaintiff completed high school and has
an Associate's Degree in electrical engineering. Tr. 31,
48. Plaintiff has past relevant work experience as a research
engineering technician, manufacturing technician, and
field-service engineer. Tr. 30.
alleges disability due to fibromyalgia, migraines,
depression, and grand mal seizures. Tr. 122. Plaintiff took
some time off in March 2011 because of his back pain. Tr.
846. When he tried to go back to work, the pain got worse.
Tr. 528, 603. Plaintiff stopped working due to his back pain,
and he continued to have chronic lower-back pain from that
point. Tr. 19, 489, 519, 847. Brett Stacey, M.D., treating
physician, concluded Plaintiff meets the American College of
Rheumatology criteria for fibromyalgia. Tr. 484.
addition to his back pain, Plaintiff states he experiences
pain in his feet, legs, arms, hands, and shoulders. Tr. 485,
489, 499, 510, 514, 659. Plaintiff reported his pain is
constant and persistent and became so severe at one point
that he was bedridden for days. Tr. 513, 676, 847, 1322,
1376. Plaintiff also reported difficulties with memory and
stated he suffers at times from frequent memory lapses that
last as long as an entire day. Tr. 90, 293, 411, 413, 416,
847, 1337. In addition, he reported he suffers from PTSD due
to an incident when he was 12 years old in which his
stepfather attacked his mother and Plaintiff shot and killed
his stepfather. Tr. 489, 848. Plaintiff also suffers from
chronic depression. Tr. 476, 484. Dr. Stacey observed
Plaintiff "has longstanding depression with prior
suicidal attempts and ideation." Tr. 484. Treating
psychologist Beth Darnall, Ph.D., concluded Plaintiff is
severely depressed and another treating provider determined
Plaintiff was at risk for suicide. Tr. 491, 1309. His
depression is exacerbated by the stress of his son's
terminal brain cancer, which has resulted in his son's
blindness. Tr. 492, 569, 848. Plaintiff also suffers from
excruciating migraines that have caused him to go to the
emergency room on dozens of occasions. Tr. 411, 423, 431,
460, 465, 469, 472, 476, 479, 628, 672, 681, 684, 687, 700,
705, 721, 804, 807, 810, 812, 815, 821, 823, 833-34, 868,
871, 963, 1002, 1050, 1230, 1357, 1368. To provide relief
from the migraines Plaintiff generally has to be treated with
a cocktail of intravenous drugs. Tr. 460, 628, 672, 823. At
multiple appointments, treating physician Michelle Mears,
M.D., observed Plaintiff lying on the floor in the fetal
position due to migraine pain. Tr. 628, 632. Despite trying a
wide variety of treatment options, Plaintiff's migraines
have persisted. See, e.g., Tr. 25, 1357, 1368, 1370.
initial burden of proof rests on the claimant to establish
disability. Molina v. Astrue, 674 F.3d 1104, 1110
(9thCir. 2012). To meet this burden, a claimant
must demonstrate his inability "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).
The ALJ must develop the record when there is ambiguous
evidence or when the record is inadequate to allow for proper
evaluation of the evidence. McLeod v. Astrue, 640
F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v.
Massanari, 276 F.3d 453, 459-60 (9th Cir.
district 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 as a whole.
42 U.S.C. § 405(g). See also Brewes v. Comm'r of
Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th
Cir. 2012). Substantial evidence is "relevant evidence
that a reasonable mind might accept as adequate to support a
conclusion." Molina, 674 F.3d. at
1110-11 (quoting Valentine v. Comm'r Soc. Sec.
Admin., 574 F.3d 685, 690 (9th Cir. 2009)).
"It is more than a mere scintilla [of evidence] but less
than a preponderance." Id. (citing
Valentine, 574 F.3d at 690).
is responsible for determining credibility, resolving
conflicts in the medical evidence, and resolving ambiguities.
Vasquez v. Astrue, 572 F.3d 586, 591 (9th
Cir. 2009). The court must weigh all of the evidence whether
it supports or detracts from the Commissioner's decision.
Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198
(9th Cir. 2008). Even when the evidence is
susceptible to more than one rational interpretation, the
court must uphold the Commissioner's findings if they are
supported by inferences reasonably drawn from the record.
Ludwig v. Astrue, 681 F.3d 1047, 1051
(9th Cir. 2012). The court may not substitute its
judgment for that of the Commissioner. Widmark v.
Barnhart, 454 F.3d 1063, 1070 (9th Cir.
Commissioner has developed a five-step sequential inquiry to
determine whether a claimant is disabled within the meaning
of the Act. Parra v. Astrue, 481 F.3d 742, 746
(9th Cir. 2007). See also 20 C.F.R.
§ 404.1520 (2016). Each step is potentially dispositive.
One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity. 20 C.F.R. § 404.1520(a)(4)(I). See also
Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724
(9th Cir. 2011).
Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments. 20 C.F.R.
§§ 404.1509, 404.1520(a)(4)(ii). See also
Keyser, 648 F.3d at 724.
Three the claimant is disabled if the Commissioner determines
the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. 20 C.F.R.
§ 404.1520(a)(4)(iii). See also Keyser, 648
F.3d at 724. The criteria for the listed impairments, known
as Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
Commissioner proceeds beyond Step Three, he must assess the
claimant's residual functional capacity (RFC). The
claimant's RFC is an assessment of the sustained,
work-related physical and mental activities the claimant can
still do on a regular and continuing basis despite his
limitations. 20 C.F.R. § 404.1520(e). See also
Social Security Ruling (SSR) 96-8p. "A 'regular and
continuing basis' means 8 hours a day, for 5 days a week,
or an equivalent schedule." SSR 96-8p, at *1. In other
words, the Social Security Act does not require complete
incapacity to be disabled. Taylor v. Comm'r of Soc.
Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir.
2011)(citing Fair v. Bowen, 885 F.2d 597, 603
(9th Cir. 1989)).
Four the claimant is not disabled if the Commissioner
determines the claimant retains the RFC to perform work he
has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
Commissioner reaches Step Five, he must determine whether the
claimant is able to do any other work that exists in the
national economy. 20 C.F.R. § 404.1520(a)(4)(v). See
also Keyser, 648 F.3d at 724-25. Here the burden shifts
to the Commissioner to show a significant number of jobs
exist in the national economy that the claimant can perform.
Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d
1068, 1071 (9th Cir. 2010). The Commissioner may
satisfy this burden through the testimony of a VE or by
reference to the Medical-Vocational Guidelines set forth in
20 C.F.R. part 404, subpart P, appendix 2. If the
Commissioner meets this burden, the claimant is not disabled.
20 C.F.R. § 404.1520(g)(1).
One the ALJ found Plaintiff had not engaged in substantial
gainful activity since March 5, 2011, the alleged onset date.
Two the ALJ found Plaintiff has the severe impairments of
migraines, myofascial pain syndrome of the back, and
fibromyalgia. Tr. 19. The ALJ found Plaintiff's
depression, diabetes mellitus, hypertension, Vitamin D
deficiency, and hyperlipidemia are nonsevere. Tr. 20-22.
Three the ALJ concluded Plaintiff's medically
determinable impairments during the relevant period did not
meet or medically equal one of the listed impairments in 20
C.F.R. part 404, subpart P, appendix 1. Tr. 22. The ALJ then
found Plaintiff has the RFC to perform light work with the
following limitations: Plaintiff can sit, stand, and walk
about six hours each in an eight-hour workday; frequently
climb ramps and stairs; never climb ladders, ropes, or
scaffolds; occasionally stoop, kneel, crouch, and crawl; and
do no more than simple routine work. He also must avoid
concentrated exposure to hazards such as machinery and
heights. Tr. 22.
Four the ALJ found Plaintiff is unable to perform any of his
past relevant work. Tr. 30.
Five the ALJ found Plaintiff can perform jobs that exist in
significant numbers in the national economy such as laundry
folder, storage-facility rental clerk, and office helper. Tr.
31. Accordingly, the ALJ found Plaintiff is not disabled and,
therefore, is not entitled to benefits. Tr. 32.
contends the ALJ erred by (1) improperly discounting
Plaintiff's subjective symptom testimony; (2) erroneously
rejecting the medical opinions of treating physician Dr.
Mears and examining physician Thomas Anderson, M.D.; (3)
improperly crediting the opinion of nonexamining physician
Neal Berner, M.D., over the opinions of Dr. Mears and Dr.
Anderson; (4) erroneously rejecting the lay-witness testimony
of Sheryll Bair, Plaintiff's mother; (5) improperly