United States District Court, D. Oregon
Merrill Schneider Schneider Kerr & Robichaux Attorney for
J. Williams United States Attorney Renata Gowie Assistant
United States Attorney
A. Boden Special Assistant United States Attorneys for
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
brings this action for judicial review of the
Commissioner's final decision denying her application for
Disability Insurance Benefits (“DIB”) under Title
II of the Social Security Act. The Court has jurisdiction
under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C.
§ 1382(c)(3)). Because the ALJ failed to evaluate the
medical opinion of a treating physician, Court REVERSES the
Commissioner's decision and REMANDS this case for further
was born on July 13, 1958 and was fifty years old on December
31, 2008, the alleged disability onset date. Tr. 20,
Plaintiff last met the insured status requirements of the
Social Security Act (“SSA” or “Act”)
on September 30, 2012. Tr. 22. Plaintiff has some college
education and past relevant work experience as a
receptionist, claims service representative, and
telemarketer. Tr. 29, 235. Plaintiff claims she is disabled
based on: degenerative disease in her spine and joints;
musculoskeletal conditions; tendinopathy; seizure disorder;
vertigo; and depression. Tr. 22, 325, 352, 358.
Plaintiff's benefits application was denied initially on
December 16, 2013, and upon reconsideration on May 14, 2014.
Tr. 20, 110-15, 130-32. A hearing was held before
Administrative Law Judge Vadim Mozyrks on February 8, 2016.
Tr. 35-80. ALJ Mozyrsk issued a written decision on March 30,
2016, finding Plaintiff not disabled. Tr. 20-30. The Appeals
Council declined review, rendering ALJ Mozyrsk's decision
the Commissioner's final decision that Plaintiff now
challenges in this Court. Tr. 1-6.
Plaintiff's separate claim for Supplemental Security
Income (“SSI”) was granted by the Commissioner.
Tr. 116-129. The Commissioner determined that, as of August
2013, Plaintiff was disabled and entitled to benefits. Tr.
116. The central issue here is whether the ALJ properly
determined that Plaintiff was not disabled during the
relevant time period: December 31, 2008, through September
claimant is disabled if 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). Disability claims are evaluated according to a
five-step procedure. Valentine v. Comm'r Soc. Sec.
Admin., 574 F.3d 685, 689 (9th Cir. 2009). 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). At 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 claimant's
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, the claimant is not disabled. If the
claimant cannot perform past relevant work, the burden shifts
to the Commissioner. At 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 its 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 found that Plaintiff had not engaged in
substantial gainful activity since the alleged disability
onset date. Tr. 22.
two, the ALJ determined that Plaintiff “had the
following severe impairments: degenerative disc disease,
bilateral knee degenerative joint disease, left upper
extremity tendinopathy and degenerative joint disease,
seizure disorder, and obesity.” Id. The ALJ
also determined that Plaintiff's depression was not
severe. Tr. 22-24.
three, the ALJ determined that Plaintiff did not have any
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments. Tr. 24. Particularly, the ALJ found that
Plaintiff's condition did not meet the requirements of
Listing 11.03 for non-convulsive epilepsy. Id.
proceeding to step four, the ALJ found that Plaintiff had the
RFC to perform sedentary work with the following exceptions:
She could lift and carry, and push and pull, up to ten pounds
occasionally and less than ten pounds frequently. She could
sit up to six hours in an eight-hour day. She could stand and
walk up to two hours total in an eight-hour day. She could
occasionally reach overhead with the left upper extremity.
She could occasionally, climb, balance, stoop, kneel, crouch
and crawl. She could never work around unprotected heights,
around heavy operating machinery or operate motor vehicles as
part of her day-to-day job. She also could never work around
extreme cold conditions.
four, the ALJ determined that Plaintiff was capable of
performing past relevant work as a receptionist, claims
service representative, and telemarketer. Tr. 29.
Accordingly, the ALJ did not proceed to step five and
concluded that Plaintiff was not disabled under the Act. Tr.
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). Courts consider 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 omitted); see