United States District Court, D. Oregon
Wilborn WILBORN LAW OFFICE, P.C. Attorney for Plaintiff
J. Williams UNITED STATES ATTORNEY District of Oregon Renata
Gowie ASSISTANT UNITED STATES ATTORNEY
Goldoftas SPECIAL ASSISTANT UNITED STATES ATTORNEY Attorneys
OPINION & ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE.
Dagni M. brings this action seeking judicial review of the
Commissioner's final decision to deny disability
insurance benefits (DIB) and supplemental security income
(SSI). This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)).
I affirm the Commissioner's decision in part, reverse it
in part, and remand for additional proceedings.
applied for DIB and SSI on May 13, 2013, alleging an onset
date of July 1, 2011. Tr. 199-205 (DIB App.), Tr. 206-13 (SSI
App.). Her applications were denied initially and on
reconsideration. Tr. 84-107, 136-45 (Initial); Tr. 108-35,
151-56 (Recon.). On April 5, 2016, Plaintiff appeared, with
counsel, for a hearing before an Administrative Law Judge
(ALJ). Tr. 47-83. On June 1, 2016, the ALJ found Plaintiff
not disabled. Tr. 15-40. The Appeals Council denied review.
alleges disability based on having thyroid disease, vision
problems, pain in the lower back, hips, and leg, and problems
with both shoulders. Tr. 238, 266. At the time of the
hearing, she was forty-nine years old. Tr. 199 (showing date
of birth). She has a tenth-grade education and has past
relevant work experience as a fast-food cook, waitress,
fast-food worker, bartender, and cashier. Tr. 32-33, 54, 74.
claimant is disabled if 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. §§
claims are evaluated according to a five-step procedure.
See Valentine v. Comm'r, 574 F.3d 685, 689 (9th
Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the
ultimate burden of proving disability. Id.
first step, the Commissioner determines whether a claimant is
engaged in "substantial gainful activity." If so,
the claimant is not disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b),
416.920(b). In step two, the Commissioner determines whether
the claimant has a "medically severe impairment or
combination of impairments." Yuckert, 482 U.S.
at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If
not, the claimant is not disabled.
three, the Commissioner determines whether plaintiffs
impairments, singly or in combination, meet or equal
"one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Yuckert, 482
U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d).
If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four.
Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant,
despite any impairment(s), has the residual functional
capacity (RFC) to perform "past relevant work." 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can perform past relevant work, the claimant is not disabled.
If the claimant cannot perform past relevant work, the burden
shifts to the Commissioner. In step five, the Commissioner
must establish that the claimant can perform other work.
Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§
404.1520(e) & (f), 416.920(e) & (f). If the
Commissioner meets his burden and proves that the claimant is
able to perform other work which exists in the national
economy, the claimant is not disabled. 20 C.F.R. §§
one, the ALJ determined that Plaintiff met the insured status
requirements of the Social Security Act through March 31,
2017, and had not engaged in substantial gainful activity
since her alleged onset date. Tr. 20. Next, at step two, the
ALJ determined that Plaintiff has severe impairments of
obesity, right and left shoulder rotator cuff tear status
post-surgery, degenerative joint disease, and degenerate disc
disease with reported lower back, knee, and hip pain. Tr.
21-24. At step three, the ALJ found that these impairments
did not meet or equal, either singly or in combination, a
listed impairment. Tr. 24-25.
four, the ALJ concluded that Plaintiff has the RFC to lift
and/or carry twenty pounds occasionally and ten pounds
frequently (including upward pulling); to stand and/or walk
about six hours in an eight-hour day; and to sit for about
six hours in an eight-hour day. Tr. 25. Further, she can
bilaterally operate foot controls occasionally; can
bilaterally reach overhead with the upper extremities
occasionally; can occasionally climb ramps or stairs; can
never climb ladders, ropes, or scaffolds; can balance
frequently, can kneel, crouch, stoop, or bend occasionally;
and can never crawl. Id. Finally, she can have no
more than occasional exposure to vibration and no exposure to
hazards such as dangerous machinery or unprotected heights.
Id. With this RFC, the ALJ determined that Plaintiff
can perform her past relevant work of fast-food worker and
cashier. Tr. 32. Alternatively, at step five, the ALJ
determined that Plaintiff can perform jobs that exist in
significant numbers in the economy such as motel maid, sales
attendant, and marking clerk. Tr. 34. Thus, the ALJ
determined that Plaintiff is not disabled. Tr. 34-35.
may set aside the Commissioner's denial of benefits only
when the Commissioner's findings are based on legal error
or are not supported by substantial evidence in the record as
a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th
Cir. 2009). "Substantial evidence means 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." Id. (internal quotation
marks omitted). The court considers the record as a whole,
including both the evidence that supports and detracts from
the Commissioner's decision. Id.; Lingenfelter v.
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where
the evidence is susceptible to more than one rational
interpretation, the ALJ's decision must be
affirmed." Vasquez, 572 F.3d at 591 (internal
quotation marks and brackets omitted); see also Massachi
v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
("Where the evidence as a whole can support either a
grant or a denial, [the court] may not substitute [its]
judgment for the ALJ's") (internal quotation marks
argues that the ALJ erred by (1) rejecting her subjective
limitations testimony; (2) giving little weight to the
opinions of two treating physicians; and (3) finding that she