United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Aiken United States District Judge
Michael B. brings this action pursuant to the Social Security
Act, 42 U.S.C. § 405(g), to obtain judicial review of a
final decision of the Commissioner of Social Security
("Commissioner"). The Commissioner denied
plaintiffs applications for Disability Insurance Benefits
("DIB") and Supplemental Security Income
("SSI"). For the reasons set forth below, the
Commissioner's decision is reversed and remanded for
January 2012, plaintiff applied for DIB and SSI. He alleged
disability beginning December 31, 2006, due to schizophrenia,
bipolar disorder, manic depression, PTSD, visual and auditory
problems, anger management problems, migraine headaches,
trouble sleeping, and difficulty concentrating. Plaintiffs
applications were denied initially and upon reconsideration.
On October 17, 2013, plaintiff appeared at a hearing before
an ALJ. On October 31, 2013, the ALJ issued a decision
finding plaintiff not disabled. After the Appeals Council
denied review, plaintiff filed a complaint in this Court.
10, 2016, Judge King reversed and remanded for further
proceedings. Judge King determined that the ALJ's
decision was not supported by substantial evidence for two
reasons. First, Judge King held that the ALJ had discredited
plaintiffs subjective symptom testimony without providing the
requisite clear, convincing reasons for doing so. In
particular, Judge King found that the ALJ had erred by (1)
failing to adequately address the medical evidence that
plaintiff suffers from hallucinations; (2) failing to
consider the possibility that plaintiffs mental health
symptoms may wax and wane; and (3) questioning the severity
of plaintiffs symptoms because plaintiff has not consistently
sought mental health treatment without exploring possible
explanations for that lack of treatment, including inability
to afford treatment and a possible causal relationship
between the mental illness and failure to seek treatment.
Judge King found that the ALJ had violated her duty to
develop the record and expressly found that the record was
"inadequate to adequately assess [plaintiffs] mental
impairments." Tr. 643. Judge King noted that the ALJ had
given "significant weight" to the opinion of Dr.
Dooley, a consultative physician, yet had failed to account
for the "serious symptoms" implicit in Dr.
Dooley's opinion. Tr. 644. Judge King remanded "for
further evaluation of [plaintiffs] mental impairments, to
include objective testing if necessary to fully assess
[plaintiffs] functioning." Tr. 644.
Appeals Council issued a remand order, and the ALJ convened a
second hearing on May 9, 2017. At the hearing, plaintiffs
counsel requested a consultative examination, but the ALJ
denied that request. On June 1, 2017, the ALJ issued a second
decision, again finding plaintiff not disabled. The Appeals
Council denied review, and plaintiff now seeks judicial
district court must affirm the Commissioner's decision if
it is based upon proper legal standards and the findings are
supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Berry v. Astrue, 622 F.3d 1228, 1231
(9th Cir. 2010). "Substantial evidence is more than a
mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Gutierrez v.
Comm'r of Soc. Sec, 740 F.3d 519, 522 (9th Cir.
2014) (citation and quotation marks omitted). The court must
weigh "both the evidence that supports and the evidence
that detracts from the ALJ's conclusion." Mayes
v. Massanari, 276 F.3d 453, 459 (9th Cir, 2001). If the
evidence is subject to more than one inteipretation but the
Commissioner's decision is rational, the Commissioner
must be affirmed because "the court may not substitute
its judgment for that of the Commissioner." Edlund
v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
initial burden of proof rests upon the claimant to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the 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).
Commissioner has established a five-step sequential process
for determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
404.1520(a)(4); id. § 416.920(a)(4). At step
one, the ALJ found plaintiff had not engaged in
"substantial gainful activity" since the alleged
disability onset date. Tr. 572; 20 C.F.R. §
404.1520(a)(4)(i), (b); id. § 416.920(a)(4)(i),
(b). At step two, the ALJ found plaintiff suffers from the
severe impairments of affective disorder and personality
disorder. See 20 C.F.R. § 404.1520(a)(4)(ii),
(c); id. § 416.920(a)(4)(ii), (c).
three, the ALJ determined plaintiffs impairments, whether
considered singly or in combination, did not meet or equal
"one of the listed impairments" that the
Commissioner acknowledges are so severe as to preclude
substantial gainful activity. Tr. 573; 20 C.F.R.
§404.1520(a)(4)(iii), (d); id §
416.920(a)(4)(iii), (d). The ALJ found plaintiff retained the
residual functional capacity ("RFC")
to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except: he can consistently maintain
concentration, persistence, and pace for simple as well as
detailed tasks, as long as the detailed tasks are not highly
complex (meaning not more than SVP 4); and he should have