United States District Court, D. Oregon
W. Brewer, Of Attorneys for Plaintiff.
J. Williams, United States Attorney, and Renata Gowie,
Assistant United States Attorney, Thomas M. Elsberry, Special
Assistant United States Attorney, Office of General Counsel,
Social Security Administration, Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon, United States District Judge.
Vincent T. seeks judicial review of the final decision of the
Commissioner of the Social Security Administration
(“Commissioner”) denying his application for
Supplemental Security Income (“SSI”) and
Disability Insurance Benefits (“DIB”). For the
following reasons, the Commissioner's decision is
REVERSED and REMANDED.
district court must affirm the Commissioner's decision if
it is based on the proper legal standards and the findings
are supported by substantial evidence. 42 U.S.C. §
405(g); see also Hammock v. Bowen, 879 F.2d 498, 501
(9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a
preponderance.” Bray v. Comm'r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). It means “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. (quoting Andrews, 53
F.3d at 1039).
the evidence is susceptible to more than one rational
interpretation, the Commissioner's conclusion must be
upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are
insignificant if the Commissioner's interpretation is a
rational reading of the record, and this Court may not
substitute its judgment for that of the Commissioner. See
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190,
1193, 1196 (9th Cir. 2004). “[A] reviewing court must
consider the entire record as a whole and may not affirm
simply by isolating a specific quantum of supporting
evidence.” Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007) (quoting Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation
marks omitted)). A reviewing court, however, may not affirm
the Commissioner on a ground upon which the Commissioner did
not rely. Id.; see also Bray, 554 F.3d at
filed an application for SSI on March 18, 2013, and an
application for DIB on April 30, 2013. AR 187-189. In both
applications, Plaintiff alleged disability beginning August
30, 2008. Plaintiff's date of birth is February 10, 1965,
and he was 43 years old on the alleged disability onset date.
AR 187. Plaintiff alleged disability due to knee
osteoarthritis, tubes in his ears with hearing loss,
hypertension, back pain, depression, a learning disability,
attention deficit hyperactivity disorder
(“ADHD”), asthma, anger outbursts, alcohol
dependence in sustained full remission, and drug dependence
in early full remission. AR 196. The Commissioner denied
Plaintiff's application initially and again on
reconsideration. AR 127-134, 140-145. Plaintiff then
requested a hearing before an Administrative Law Judge
(“ALJ”). AR 146. An administrative hearing was
held on June 8, 2015. AR 31. The ALJ concluded Plaintiff was
not disabled from August 30, 2008 through the date of the
decision on July 13, 2015. AR 11. The Appeals Council denied
Plaintiff's request for review, making the ALJ's
decision the final decision of the Commissioner. AR 1-5.
Plaintiff now seeks judicial review of that decision.
The Sequential Analysis
claimant is disabled if he or she 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 12 months[.]” 42 U.S.C. §
423(d)(1)(A). “Social Security Regulations set out a
five-step sequential process for determining whether an
applicant is disabled within the meaning of the Social
Security Act.” Keyser v. Comm'r Soc. Sec.
Admin., 648 F.3d 721, 724 (9th Cir. 2011); see
also 20 C.F.R. §§ 404.1520 (DIB), 416.920
(SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
Each step is potentially dispositive. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1. Is the claimant performing “substantial gainful
activity?” 20 C.F.R. §§ 404.1520(a)(4)(i),
416.920(a)(4)(i). This activity is work involving significant
mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the
claimant is performing such work, she is not disabled within
the meaning of the Act. 20 C.F.R. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not
performing substantial gainful activity, the analysis
proceeds to step two.
2. Is the claimant's impairment “severe”
under the Commissioner's regulations? 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is
“severe” if it significantly limits the
claimant's physical or mental ability to do basic work
activities. 20 C.F.R. §§ 404.1521(a), 416.921(a).
Unless expected to result in death, this impairment must have
lasted or be expected to last for a continuous period of at
least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If
the claimant does not have a severe impairment, the analysis
ends. 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). If the claimant has a severe impairment,
the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or
equal” one or more of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1? If so, then the
claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment
does not meet or equal one or more of the listed impairments,
the analysis continues. At that point, the ALJ must evaluate
medical and other relevant evidence to assess and determine
the claimant's “residual functional capacity”
(“RFC”). This is an assessment of work-related
activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his
or her impairments. 20 C.F.R. §§ 404.1520(e),
404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ
determines the claimant's RFC, the analysis proceeds to
4. Can the claimant perform his or her “past relevant
work” with this RFC assessment? If so, then the
claimant is not disabled. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot
perform his or her past relevant work, the analysis proceeds
to step five.
5. Considering the claimant's RFC and age, education, and
work experience, is the claimant able to make an adjustment
to other work that exists in significant numbers in the
national economy? If so, then the claimant is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such
work, he or she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954
(9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Id. at 953; see also Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999);
Yuckert, 482 U.S. at 140-41. The Commissioner bears
the burden of proof at step five. Tackett, 180 F.3d
at 1100. At step five, the Commissioner must show that the
claimant can perform other work that exists in significant
numbers in the national economy, “taking into
consideration the claimant's residual functional
capacity, age, education, and work experience.”
Id.; see also 20 C.F.R. §§
404.1566, 416.966 (describing “work which exists in the
national economy”). If the Commissioner fails to meet
this burden, the claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform
other work existing in significant numbers in the national
economy, the claimant is not disabled. Bustamante,
262 F.3d at 953-54; Tackett, 180 F.3d at 1099.
The ALJ's Decision
first found that Plaintiff met the insured status
requirements of the Social Security Act through September 30,
2011. AR 13. Thus, for Plaintiff's DIB claim, he must
establish disability on or before that date. The ALJ then
conducted the sequential analysis. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful
activity since August 30, 2008, the alleged onset date. AR
13. At step two, the ALJ found Plaintiff had the following
severe impairments: meniscus tear in the left knee, tubes in
the ears with some hearing loss, a learning disorder, and
depression. AR 13. At step three, the ALJ found that
Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the
impairments listed in the regulations. AR 15.
then determined that Plaintiff retained the RFC to perform
light work with the following limitations:
He can stand and walk 2 hours total out of an 8-hour workday.
He can sit 6 hours total in an 8-hour workday. He may need to
use a cane when walking. He can occasionally climb ramps and
stairs; but he should not climb ladders, ropes and scaffolds.
He can occasionally balance, stoop, kneel, crouch and crawl.
He should avoid even moderate exposure to hazards, such as
unprotected heights and exposed moving mechanical parts. He
can understand and remember simple instructions. He has
sufficient ability to maintain concentration, persistence, or
pace to complete simple, routine tasks in 2-hour increments
for a normal workday and workweek with normal breaks. He
should not work with the general public. He can work around a
small number of coworkers. He should work in an independent
setting with limited oversight. He is able to accept
predictable supervision based on objective performance
standards. He should have additional time initially to learn
tasks. He should not be exposed to loud industrial noise.
At step four, the ALJ found Plaintiff unable to perform any
past relevant work. AR 24. At step five, the ALJ identified
three jobs in the national economy that Plaintiff could
perform based on his age, education, work experience, and
RFC. The ALJ concluded that Plaintiff was not disabled. AR
argues that the ALJ erred by: (A) rejecting Plaintiff's
subjective symptom testimony; (B) rejecting the testimony of
an examining physician and reviewing psychologists; (C)
rejecting lay witness testimony; (D) consulting a vocational
expert (“VE”) instead of relying on the
Medical-Vocational Guide (“Grids”); (E) diverging
from the Dictionary of Occupational ...