United States District Court, D. Oregon
Katherine L. Eitenmiller and Robert A. Baron, Of Attorneys
J. Williams, United States Attorney, and Renata Gowie,
Assistant United States Attorney, Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon, United States District Judge.
K. (“Plaintiff”) seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying her
application for Disability Insurance Benefits
(“DIB”). AR 15. For the reasons discussed below,
the Commissioner's decision is REVERSED and REMANDED for
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
protectively filed an application for DIB on June 5, 2013,
alleging disability beginning January 1, 1996. AR 177.
Plaintiff alleged disability due to chronic migraines,
fibromyalgia, and severe depression. AR 215. She was born on
January 13, 1954 and was 41 years old as of her alleged
disability onset date. AR 177. The Commissioner denied her
applications both initially and upon reconsideration. AR 119,
129. Plaintiff requested a hearing before an Administrative
Law Judge (“ALJ”). AR 22. On September 10, 2015,
an administrative hearing was held. AR 40. On September 21,
2015, the ALJ issued a decision finding that Plaintiff was
not disabled under the Social Security Act and not entitled
to DIB. AR 19-35. On November 16, 2015, Plaintiff requested a
review of the ALJ decision by the Appeals Council. AR 15-18.
On February 17, 2017, the Appeals Council denied her request
for review, making the ALJ's decision the final decision
of the Commissioner. AR 1-4. 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
preliminary matter, the ALJ determined that Plaintiff met the
insured status requirements of the Social Security Act
through December 31, 2002. AR 24. Thus, Plaintiff must
establish disability on or before that date in order to be
entitled to DIB. AR 22. Next, the ALJ applied the sequential
analysis. AR 24-34. At step one, the ALJ found that Plaintiff
did not engage in substantial gainful activity from her
alleged onset date through her date last insured. AR 24. At
step two, the ALJ found that Plaintiff had three severe
medical impairments, which more than minimally affect
Plaintiff's ability to work: migraines; depressive
disorder; and fibromyalgia. Id. The ALJ also noted
that Plaintiff had a history of three non-severe medical
impairments, which have no more than a minimal affect on her
ability to work: intermittent hives; an abdominal
hysterectomy and bilateral salpingo-oophorectomy; and an
appendectomy. Id. At step three, the ALJ found that
Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one
of the listed impairments in 20 C.F.R. § 404, Subpart P,
Appendix 1. AR 25-26.
then evaluated Plaintiff's RFC. The ALJ determined that
Plaintiff had an RFC as follows:
to perform less than a full range of sedentary work as
defined in 20 C.F.R. § 404.1567(a). Specifically, the
claimant can lift and/or carry 10 pounds occasionally and
less than 10 pounds frequently; she can stand and/or walk for
two hours out of an eight-hour workday with regular breaks if
she is allowed to sit for 5 minutes per hour of walking while
remaining on task; she can sit for six hours out of an
eight-hour workday with regular breaks if she can stand for
five minutes per hour of sitting while remaining on task; she
is unlimited with respect to pushing and/or pulling, other
than as indicated for lifting and/or carrying. She can
frequently climb ramps and stairs, but is precluded from
climbing ladders, ropes or scaffolds. The claimant can
occasionally stoop and crouch. The claimant is precluded from
working at unprotected heights, with moving mechanical parts,
or with extremes of heat and cold. The claimant can
understand, remember and carryout simple and routine tasks.
The claimant is limited to simple work-related decisions. The
claimant's time off task can be accommodated by normal
four, the ALJ compared the vocational expert's testimony,
the mental and physical demands of Plaintiff's past
relevant work, and the Plaintiff's RFC. Accordingly, the
ALJ determined that Plaintiff was not able to perform any
past relevant work. AR 32.
five, the ALJ considered Plaintiff's RFC, age, education,
and work experience and determined that, based on the
vocational expert's testimony, jobs existed in
significant numbers in the national economy that Plaintiff
could have performed through the date last insured. AR 33.
Therefore, the ALJ determined that Plaintiff was not disabled
as defined in the Social Security Act at any time from the
alleged onset date through the date last insured. AR 34.
contends that the ALJ made the following legal errors in
evaluating her case: (A) improperly discrediting
Plaintiff's subjective symptom testimony; (B) failing to
adequately incorporate a limitation in public interaction as
set forth by Richard Winslow, M.D., in the RFC and
hypothetical posed to the vocational expert; (C) improperly
discrediting the opinions and findings of treating physicians
Kathleen Cordes, M.D. and Martin Klos, M.D.; and (D)
improperly discrediting the opinions and findings of
Plaintiff's therapist, Terry Fields, M.S.
Plaintiff's Subjective Symptom Testimony
is a two-step process for evaluating a claimant's
testimony about the severity and limiting effect of the
claimant's symptoms. Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009). “First, the ALJ must
determine whether the claimant has presented objective
medical evidence of an underlying impairment ‘which
could reasonably be expected to produce the pain or other
symptoms alleged.'” Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting
Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.
1991) (en banc)). When doing so, “the claimant need not
show that her impairment could reasonably be expected to
cause the severity of the symptom she has alleged; she need
only show that it could reasonably have caused some degree of
the symptom.” Smolen v. Chater, 80 F.3d 1273,
1282 (9th Cir. 1996).
if the claimant meets this first test, and there is no
evidence of malingering, ‘the ALJ can reject the
claimant's testimony about the severity of her symptoms
only by offering specific, clear and convincing reasons for
doing so.'” Lingenfelter, 504 F.3d at 1036
(quoting Smolen, 80 F.3d at 1281). It is “not
sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence
suggests the complaints are not credible.” Dodrill
v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those
reasons must be “sufficiently specific to permit the
reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant's testimony.” Orteza v.
Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
ALJ's credibility decision may be upheld overall even if
not all of the ALJ's reasons for rejecting the
claimant's testimony are upheld. See Batson, 359
F.3d at 1197. The ALJ may not, however, make a negative
credibility finding “solely because” the
claimant's symptom testimony “is not substantiated
affirmatively by objective medical evidence.”
Robbins, 466 F.3d at 883.
determined that Plaintiff's medically determinable
impairments could be expected to cause the alleged symptoms,
but not to the extent claimed by Plaintiff. AR 28. The ALJ
cited two reasons for discounting Plaintiff's subjective
testimony regarding her symptoms: (a) she stopped work for
reasons other than disability and (b) her activities of daily
living were inconsistent with her allegations that she is
unable to sustain employment.
Plaintiff's reasons for leaving employment
determined that Plaintiff stopped working for reasons not
related to the severity of her symptoms. The ALJ stated,
“prior to alleged onset date, [Plaintiff's]
Employer, EWEB had her working full time, but when her
daughter was born she wanted to cut back to part time, but it
didn't work out.” AR 27. Plaintiff responds that