United States District Court, D. Oregon
RITA L. S., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION & ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE.
Rita L. S. seeks judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”)
denying disability and disability insurance benefits pursuant
to Title II and supplemental security income pursuant to
Title XVI of the Social Security Act. For the reasons set
forth below, the decision of the Commissioner is REVERSED and
REMANDED for award of benefits.
filed a Title II application for a period of disability and
disability insurance benefits on December 17, 2013, and a
Title XVI application for supplemental security income on
November 13, 2015. Tr. 20. Plaintiff alleged disability
beginning February 21, 2012. Id. Her applications
were denied. Id. Plaintiff appeared by video
conference before an Administrative Law Judge
(“ALJ”) at a hearing held January 14, 2016.
had previously applied for Title II benefits on June 10,
2011, which was denied on November 8, 2013. Tr. 20. Plaintiff
did not appeal that unfavorable decision. Id. As
Plaintiff's alleged onset date, February 21, 2012, was
within the period adjudicated by the November 8, 2013,
decision, the ALJ interpreted the present application to be
“an implied request [to] reopen the prior final
decision, ” which the ALJ denied. Tr. 21. The ALJ did
find, however, that Plaintiff had increased pain symptoms,
constituting “changed circumstances sufficient to rebut
a presumption of continuing nondisability.”
February 4, 2016, the ALJ issued a decision finding Plaintiff
not disabled. Tr. 33. The Appeals Council denied review,
making the ALJ's decision the final decision of the
Commissioner. Tr. 4. This appeal followed.
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, 648 F.3d
721, 724 (9th Cir. 2011).
The five-steps are: (1) Is the claimant presently working in
a substantially gainful activity? (2) Is the claimant's
impairment severe? (3) Does the impairment meet or equal one
of a list of specific impairments described in the
regulations? (4) Is the claimant able to perform any work
that he or she has done in the past? and (5) Are there
significant numbers of jobs in the national economy that the
claimant can perform?
Id. at 724-25; see also Bustamante v.
Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Bustamante, 262 F.3d at 953. The Commissioner bears
the burden of proof at step five. Id. at 953-54.
performed the sequential analysis. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful
activity since the original alleged onset date of February
21, 2012. Tr. 23. The ALJ determined that Plaintiff had the
following severe impairments: degenerative joint disease of
the bilateral knees; degenerative joint disease of the right
shoulder, status-post surgery; fibromyalgia; and mild carpal
tunnel syndrome. Tr. 23. The ALJ determined that
Plaintiff's severe impairments did not meet or equal a
listed impairment. Tr. 24.
determined that Plaintiff had the RFC to perform light work
with the following additional restrictions: Plaintiff is
limited to lifting fifteen pounds with the dominant (right)
upper extremity; she is limited to frequent handling,
fingering, and feeling with the dominant (right) shoulder;
she requires the option to change positions at will while
remaining on task; she is limited to frequent operation of
foot controls; she is limited to occasional climbing of ramps
and stairs, as well as occasional stooping and kneeling; she
is limited to no crouching, crawling, or climbing ladders,
ropes, or scaffolds; she is to have no exposure to hazards
such as unprotected heights and moving mechanical parts. Tr.
determined that Plaintiff was capable of performing past
relevant work as a program manager or social worker. Tr. 32.
Accordingly, the ALJ determined that Plaintiff was not
disabled. Tr. 33.
district court must affirm the Commissioner's decision if
the decision is based on proper legal standards and the legal
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm'r, 359
F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence
“means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(citation and internal quotation marks omitted). In reviewing
the Commissioner's alleged errors, this court must weigh
“both the evidence that supports and detracts from the
[Commissioner's] conclusion.” Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable
interpretations of the evidence are insignificant if the
Commissioner's interpretation is rational. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
the evidence before the ALJ is subject to more than one
rational interpretation, courts must defer to the ALJ's
conclusion. Batson, 359 F.3d at 1198 (citing
Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.
1995)). A reviewing court, however, cannot affirm the
Commissioner's decision on a ground that the agency did
not invoke in making its decision. Stout v.
Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006).
Finally, a court may not reverse an ALJ's decision on
account of an error that is harmless. Id. at
1055-56. “[T]he burden of showing that an error is
harmful normally falls upon the party attacking the
agency's determination.” Shinseki v.
Sanders, 556 U.S. 396, 409 (2009).
alleges the ALJ erred by (1) de facto reopening
Plaintiff's prior unfavorable adjudication and failing to
provide legally sufficient reasons for finding Plaintiff not
disabled for the already-adjudicated period; (2) improperly
rejecting Plaintiff's subjective symptom testimony; and
(3) improperly discounting the medical opinion of
Plaintiff's treating physician.
De facto Re-opening of Prior Disability
previously noted, Plaintiff unsuccessfully applied for
disability benefits in June 2011, alleging disability
beginning July 17, 2010. Tr. 109. Following a hearing, an ALJ
denied that earlier application on November 8, 2013. Tr.
109-120. Plaintiff contends that the ALJ in the present case
conducted a de facto ...