United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
AIKEN, UNITED STATES DISTRICT JUDGE
Jane P. brings this action pursuant to the Social Security
Act ("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 application for Disability Insurance
Benefits ("DIB"). For the reasons set forth below,
the Commissioner's decision is REVERSED and REMANDED for
further proceedings consistent with this opinion.
September 18, 2012, plaintiff applied for DIB pursuant to
Title II. Plaintiff alleged disability beginning November 1,
2008, due to Hepatitis C, migraine headaches, chronic
fatigue, chemical sensitivities, and degenerative disc
disorder. Plaintiffs DIB application was denied initially and
upon reconsideration, with the reconsideration denial dated
July 25, 2013. An administrative hearing was held before an
Administrative Law Judge ("ALJ") on May 20, 2015,
At the hearing, plaintiff testified and was represented by
counsel. A vocational expert also testified. On July 16,
2015, the ALJ denied plaintiffs DIB application, finding that
she was not disabled on September 30, 2011, her date last
insured ("DLI") for Title II purposes. After the
Appeals Council denied review, plaintiff filed the present
complaint before this Court.
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 Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995) (quotation marks omitted)). 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 the Court may not
substitute its judgment for that of the Commissioner. See
Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d
1190, 1193 (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)). However, a reviewing court may not affirm
the Commissioner on a ground upon which the Commissioner did
not rely. Id.; see also Bray, 554 F.3d at
1225-26 (citing SEC v. Chenery Corp., 332 U.S. 194,
initial burden of proof rests upon plaintiff to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, plaintiff 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 that plaintiff had not engaged in
"substantial gainful activity" since the alleged
disability onset date. 20 C.F.R. §§
404.1520(a)(4)(i), (b); id. 416.920(a)(4)(i), (b).
Tr. 20. At step two, the ALJ found that plaintiff had the
following severe impairment as of the alleged onset dates:
lumbar spine degenerative disc disorder, cervical spine
degenerative disc disorder, right hip degenerative joint
disease, arthritis, and migraines. 20 C.F.R. §§
404.1520(a)(4)(h), (c); id. §§
416.920(a)(4)(h), (c). At step three, the ALJ determined that
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. 20 C.F.R.
§§ 404.1520(a)(4)(iii), (d); id.
§§ 416.920(a)(4)(iii), (d). Tr, 21.
then assessed plaintiffs residual functional capacity
("RFC"). 20 C.F.R. 404.1520(e); id §
416.920(e). The ALJ found that plaintiff
had the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except the claimant is limited
to no more than frequent climbing of ramps or stairs and no
climbing of ladders, ropes, or scaffolds. The claimant is
limited to no more than occasional bilateral overhead reach
and no more than frequent bilateral handling as well as no
more than frequent balancing, stopping, kneeling, crouching,
and crawling. She must avoid concentrated exposure to fumes,
odors, dust, gases, and poorly ventilated areas.
Tr. 22. At step four, the ALJ concluded that plaintiff was
capable of performing past relevant work as a clothing store
owner, billing instructor, clothing store manager, and
account manager. The ALJ denied plaintiffs application for
DIB without proceeding to step five because she "was not
under a disability within the meaning of the . . . Act at any
time from November 1, 2008, the alleged onset date, through
September 30, 2011, the date last insured." Tr. 27.
contends that the ALJ committed harmful errors with respect
to her step two, four, and five analysis. First, plaintiff
argues the ALJ improperly rejected several of plaintiff s
impairments as non-severe at step two. Secondly, she avers
the ALJ erred in failing to credit her subjective symptom
complaints and improperly evaluating the medical evidence of
her treating physicians, Dr. House and Dr. Klos. Finally,
plaintiff avers that the ALJ failed to conduct an adequate
analysis of her past relevant work experience and that the
ALJ failed to properly assess whether plaintiffs RFC was
sufficient to perform other work in the national economy. I
address each argument in turn.
Plaintiff's Subjective Symptom Complaints
with plaintiffs argument that the ALJ failed to provide
legally sufficient reasons to reject her testimony of
existing limitations that plaintiff asserts amount to a
qualifying disability. When a claimant's medically
documented impairments reasonably could be expected to
produce some degree of the symptoms complained of and the
record contains no affirmative evidence of malingering,
"the ALJ can reject the claimant's testimony about
the severity of...symptoms only by offering specific, clear
and convincing reasons for doing so." Smolen v.
Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). The ALJ
makes such a determination amidst a two-step process that
first evaluates the existence of an underlying medically
determinable physical or mental impairment that could
reasonably be expected to produce the symptoms and, secondly,
addresses the intensity, persistence, and limiting effects of
the alleged symptoms based on an examination of the entire
record. 20 C.F.R §§ 404.1529(a) & (c)(1);
416.929(a) & (c)(1). Within this analysis, the ALJ has
discretion to dismiss portions of the plaintiffs testimony so
long as the adjudicator provides "clear and convincing
reasons" for doing so. A general assertion that the
claimant is not credible is insufficient; the ALJ must
"state which...testimony is not credible and what
evidence suggests that the complaints are not credible."
Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.
the reasons proffered by the ALJ for discrediting a
claimant's testimony must be "sufficiently specific
to permit the reviewing court to conclude that the ALJ did
not arbitrarily discredit the [testimony]." Orteza
v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). If the
"ALJ's credibility finding is supported by
substantial evidence in the record, [the court] may not
engage in second-guessing." Thomas v.
Barnhardt, 278 F.3d 947, 959 (9th Cir. 2002).
administrative hearing, the ALJ asked plaintiff a series of
questions related to the ownership and management of her
clothing business through the end of 2008, the time ...