United States District Court, D. Oregon
OPINION AND ORDER
Papak United States Magistrate Judge
West ("Plaintiff) seeks judicial review of the
Commissioner of Social Security's
("Commissioner") decision denying his application
for Supplemental Security Income ("SSI") under
Title 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). All parties have
consented to allow a Magistrate Judge to enter final orders
and judgment in this case in accordance with Fed.R.Civ.P. 73
and 28 U.S.C. § 636(c). For the reasons that follow, the
Commissioner's decision is REVERSED and REMANDED for an
immediate award of benefits.
establish disability within the meaning of the Act, a
claimant must demonstrate he 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 twelve months." 42 U.S.C. §
1382c(a)(3)(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. § 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 Administrative Law Judge ("ALJ")
considers the claimant's work activity, if any, See
Bowen, 482 U.S. at 140; see also 20 C.F.R.
§ 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. §§ 416.920(a)(4)(i),
416.920(b). Otherwise, the evaluation will proceed to the
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. §
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. § 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. §§ 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.
Chater, 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. §§
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 will conclusively be found disabled. See
Bowen, 482 U.S. at 141; see also 20 C.F.R.
§§ 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. § 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. § 416.945(a); see also SSR 96-8p, 1996
SSR LEXIS 5.
fourth step of the evaluation process, the ALT 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. § 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. §§
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, At 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 CF.R. §§ 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. §§ 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. §§
reviewing court must affirm an ALJ'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 Edhmd 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. Chenety Corp.,
332 U.S. 194, 196 (1947). If the ALJ's interpretation of
the evidence is rational, it is immaterial that the evidence
maybe "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 November 13, 1989, Tr. 31. Plaintiff graduated from
high school with a 4.13 GPA. Tr. 282. His academic success
was largely attributable to intensive management,
supervision, and structure imposed by his parents. Tr. 280.
After Plaintiff left home to attend his first year at the
University of Oregon, he struggled academically and with
symptoms of depression and anxiety. Tr. 282. Following a
series of psychological and psychiatric evaluations,
Plaintiff was eventually diagnosed with Asperger's
disorder. Tr, 268. Doctors also diagnosed Plaintiff with
Attention Deficit Hyperactivity Disorder ("ADHD"),
anxiety, and social anxiety disorder, and depression. Tr.
283, 287, 293, 299, 311. Plaintiff took Celexa to manage
depression and anxiety. Tr. 254. Plaintiff subsequently
attended one year at Lane County Community College and then
returned to his parents' home and completed an Associate
of Arts ("AA") degree from Tillamook Bay Community
College in May 2011. Tr, 33, 194.
made several unsuccessful work attempts, including working at
Einstein's Bagels and as a groundskeeper. Tr. 35-36,
49-50. Each of the jobs ended because Plaintiff was unable to
maintain the focus and pace required to complete the work as
protectively filed for SSI on October 12, 2012, alleging
impairments of Asperger's, anxiety, and obsessive
compulsive disorder ("OCD"). Tr. 189, 193.
Misapplication was denied initially and upon review. A
hearing was held before an ALJ on January 8, 2015. Tr. 25-74.
Plaintiff, his father ("Mr. West"), and a
vocational expert ("VE") testified. Id. On
June 26, 2015, the ALJ issued an opinion finding Plaintiff
not disabled. Tr. 8-20. The Appeals Council denied Plaintiffs
request for review on October 13, 2016, making the ALJ's
opinion the final decision of the Commissioner. Tr. 1-4.
Plaintiff timely filed his request for district court review.
OF ALJ FINDINGS
step-one of the five-step analysis, the ALJ found that
Plaintiff had not engaged in substantial gainful activity
since October 12, 2012, the application date. Tr, 13.
Proceeding to step-two of the analysis, the ALJ found that
Plaintiff had severe impairments of Asperger's syndrome,
anxiety, and ADHD. Id.
step-three, the ALT found that Plaintiff did not have an
impairment or combination of impairments that met or equaled
any of the enumerated impairments in 20 C.F.R. § 404,
subpt. P, app. 1, Id., The ALJ therefore determined
that Plaintiff retained the following RFC:
[C]laimant has the residual functional capacity to perform a
full range of work at all exertional levels but with some
nonexertional limitations. He can perform simple tasks
typical of occupations with a specific vocational preparation
(SVP) rating of 1 or 2. He would work best in an environment
that only involves simple work related decisions with few, if
any workplace changes. He should not work in an environment
that requires a fast pace task schedule. He can only have
occasional, superficial and incidental interaction with
others. He can work in proximity to coworkers, but would work
best in an environment not requiring teamwork. He also needs
a supervisor to meet with him once a week after he has
learned required work tasks to remind him of the work tasks
and how timely he needs to perform them.
step-four, the ALJ found that Plaintiff had no past relevant
work. Tr. 19. At step-five, based on the testimony of the VE,
the ALJ found Plaintiff could perform work as a yard worker,
nursery worker, and warehouse worker, all jobs that exist in
significant numbers in the national economy. Tr. 20.
argues the ALJ: (1) erroneously found Plaintiff capable of
performing competitive employment; (2) erred by finding the
VE's testimony was consistent with the Dictionary of
Occupational Titles ("DOT"); (3) failed to provide
legally sufficient rationales for discrediting Plaintiffs
subjective symptom testimony; (4) failed to provide legally
sufficient reasons for discrediting lay witness testimony;
(5) improperly evaluated medical opinion evidence; and (6)
improperly discredited "other source" opinion
argues that the portion of the RFC requiring a supervisor to
meet with Plaintiff once a week, after he has learned the
job, to remind Plaintiff of the required work tasks and the
timeliness with which he must perform them, is an
impermissible "accommodation, " such as that
contemplated under the Americans with Disabilities Act
("ADA"). Plaintiff argues that because the RFC
requires special employer accommodation, Plaintiff is not
capable of performing competitive employment as a matter of
Social Security Act and the ADA provide two different ways to
help people with disabilities. See Cleveland v. Policy
Mgmt. Sys. Corp., 526 U.S. 795, 801 (1999). While the
Act provides monetaiy benefits to disabled individuals who
are unable to engage in any kind of substantial gainful work
that exists in the national economy, the ADA protects
individuals from workplace discrimination based on
disability. 42 U.S.C. §§ 423(d)(2)(A), 12112,
1382c(a)(3)(A); see Cleveland, 526 U.S. at 801.
the ADA prohibits a "covered entity" from
discriminating against a "qualified individual on the
basis of disability in regard to job application procedures,
the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment." 42 U.S.C. § 12112.
Discrimination can include refusal to make "reasonable
accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability who is an
applicant or employee, " unless the covered entity can
show that providing such accommodation would "impose an
undue hardship on the operation of the business."
Id. A "qualified individual" is a person
who, "with or without reasonable accommodation, can
perform the essential functions of the employment position
that such individual holds or desires." 42 U.S.C.
§12111. A "reasonable accommodation" is a
"modification]] or adjustment to the work environment,
or to the manner or circumstances under ...