United States District Court, D. Oregon
Merrill Schneider, Schneider, Kerr, & Robichaux, P.O.
Attorneys for Plaintiff.
J. Williams, Jeffery E. Staples Of Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE.
(“Plaintiff”) seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying her
application for Disability Insurance Benefits
(“DIB”) under Title II and Supplemental Security
Income (“SSI”) under Title XVI of the Social
Security Act (the “Act”). For the following
reasons, the Commissioner's decision is REVERSED and
REMANDED for further proceedings consistent with this Opinion
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 of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). 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 this Court may not
substitute its judgment for that of the Commissioner.
See Batson v. Comm 'r of Soc. Sec.
Admin., 359 F.3d 1190, 1193, 1196 (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)). A reviewing court,
however, may not affirm the Commissioner on a ground upon
which the Commissioner did not rely. Id; see
also Bray, 554 F.3d at 1226.
filed an application for DIB and SSI on August 9, 2013,
alleging disability beginning on August 1, 2011. AR 22.
Plaintiff was born in October 1963 and was 47 years old as of
the alleged disability onset date. AR 87, 99, 218, 225. She
alleged disability due to depression, emotional and bipolar
disorder (“BPD”), post-traumatic stress disorder
(“PTSD”), and “learning problems.”
See AR 87, 99. The Commissioner denied Plaintiffs
application initially and upon reconsideration. AR 22.
Thereafter, Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). Id. In
a decision dated April 22, 2016, the ALJ found Plaintiff not
disabled from August 1, 2011, through the date of decision.
AR 22-42. The Appeals Council denied Plaintiffs request for
review, making the ALJ's decision the final decision of
the Commissioner. AR 1-3; see also20 C.F.R §
422.210(a). Plaintiff seeks judicial review of that decision.
This Court has jurisdiction pursuant to 42 U.S.C. §
The Sequential Analysis
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 Soc. Sec.
Admin., 648 F.3d 721, 724 (9th Cir. 2011); see
also20 C.F.R. §§ 404.1520 (DIB), 416.920
(SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
Each step is potentially dispositive. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1. Is the claimant performing “substantial gainful
activity?” 20 C.F.R. §§ 404.1520(a)(4)(i),
416.920(a)(4)(i). This activity is work involving significant
mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the
claimant is performing such work, she is not disabled within
the meaning of the Act. 20 C.F.R. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not
performing substantial gainful activity, the analysis
proceeds to step two.
2. Is the claimant's impairment “severe”
under the Commissioner's regulations? 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is
“severe” if it significantly limits the
claimant's physical or mental ability to do basic work
activities. 20 C.F.R. §§ 404.1521(a), 416.921(a).
Unless expected to result in death, this impairment must have
lasted or be expected to last for a continuous period of at
least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If
the claimant does not have a severe impairment, the analysis
ends. 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). If the claimant has a severe impairment,
the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or
equal” one or more of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1? If so, then the
claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment
does not meet or equal one or more of the listed impairments,
the analysis continues. At that point, the ALJ must evaluate
medical and other relevant evidence to assess and determine
the claimant's “residual functional capacity”
(“RFC”). This is an assessment of work-related
activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his
or her impairments. 20 C.F.R. §§ 404.1520(e),
404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ
determines the claimant's RFC, the analysis proceeds to
4. Can the claimant perform his or her “past relevant
work” with this RFC assessment? If so, then the
claimant is not disabled. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot
perform his or her past relevant work, the analysis proceeds
to step five.
5. Considering the claimant's RFC and age, education, and
work experience, is the claimant able to make an adjustment
to other work that exists in significant numbers in the
national economy? If so, then the claimant is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such
work, he or she is disabled.
Id. See also Bustamante v. Massanari, 262
F.3d 949, 954 (9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Id. at 953; see also Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S.
at 140-41. The Commissioner bears the burden of proof at step
five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other
work that exists in significant numbers in the national
economy, “taking into consideration the claimant's
residual functional capacity, age, education, and work
experience.” Id; see also20 C.F.R.
§§ 404.1566, 416.966 (describing “work which
exists in the national economy”). If the Commissioner
fails to meet this burden, the claimant is disabled. 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If,
however, the Commissioner proves that the claimant is able to
perform other work existing in significant numbers in the
national economy, the claimant is not disabled.
Bustamante, 262 F.3d at 953-54; Tackett,
180 F.3d at 1099.
The ALJ's Decision
performed the sequential analysis as noted above. At step
one, the ALJ found Plaintiff had not engaged in substantial
gainful activity since August 1, 2011, the application date;
additionally, the ALJ found Plaintiff met the insured status
requirements of the Act through March 31, 2017. AR 24. At
step two, the ALJ found Plaintiff had the following severe
impairments: bilateral patellofemoral malalignment, right
greater than left; planter fasciitis; fibromyalgia; major
depressive disorder; PTSD; borderline personality disorder;
borderline intellectual functioning; and a history of alcohol
abuse. AR 25. At step three, the ALJ found Plaintiff did not
have an impairment or combination of impairments that met or
equaled the severity of one of the specific impairments
listed in the regulations. Id.
next determined Plaintiff's RFC and found she could
perform light work, with the following limitations:
She can lift and/or carry 20 pounds occasionally and 10
pounds frequently in an eight-hour workday. She can sit,
stand, and walk each six hours in an eight-hour workday. She
requires the option [sic] change positions from sitting to
standing at will without interrupting essential tasks. She
can never crawl, kneel, and climb ladders, ropes, or
scaffolds. She can occasionally crouch and climb ramps or
stairs. She can frequently balance. She can never be exposed
to hazards such as moving machinery and unprotected heights.
She can understand, remember, and carry out simple tasks
consistent with Specific Vocational Preparation
(“SVP”) 1 or 2, which is work that can be learned
in 30 days or less. She can perform work that deals primarily
with objects rather than people and that does not have a
strict production pace. She can perform work that does not
require public contact or teamwork assignments.
AR 27. At step four, the ALJ found Plaintiff was unable to
perform any of her past relevant work. AR 40. At step five,
the ALJ found that considering Plaintiff's age,
education, work experience, and RFC there were jobs that
existed in significant numbers in the national economy that
Plaintiff could perform. AR 41. Specifically, the ALJ found
Plaintiff could perform such representative occupations as:
garment sorter; office helper; printed product assembler;
bagger of garments, laundry; stock checker, apparel; and
garment marker. Id. Accordingly, the ALJ found
Plaintiff was not disabled from August 1, 2011, through the
date of the decision, April 22, 2016. AR 42.
seeks review of the determination by the ALJ that Plaintiff
was not disabled. She argues that the ALJ erred in making
that determination by: (A) failing to provide clear and
convincing reasons to discount Plaintiff's subjective
symptoms; (B) improperly evaluating the medical source
evidence; (C) failing to provide germane reasons to discount
lay witness evidence; (D) omitting carpal tunnel syndrome
from Plaintiff's severe impairments at step two; and (E)
failing to craft an RFC and corresponding hypothetical to the
vocational expert (“VE”) that included all of
Plaintiff's limitations at step five.
Plaintiff's Subjective Symptoms
is a two-step process for evaluating a claimant's
testimony about the severity and limiting effect of the
claimant's symptoms. Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009). “First, the ALJ must
determine whether the claimant has presented objective
medical evidence of an underlying impairment ‘which
could reasonably be expected to produce the pain or other
symptoms alleged.'” Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting
Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.
1991) (en banc)). When doing so, “the claimant need not
show that her impairment could reasonably be expected to
cause the severity of the symptom she has alleged; she need
only show that it could reasonably have caused some degree of
the symptom.” Smolen v. Chater, 80 F.3d 1273,
1282 (9th Cir. 1996).
if the claimant meets this first test, and there is no
evidence of malingering, ‘the ALJ can reject the
claimant's testimony about the severity of her symptoms
only by offering specific, clear and convincing reasons for
doing so.'” Lingenfelter, 504 F.3d at 1036
(quoting Smolen, 80 F.3d at 1281). It is “not
sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence
suggests the complaints are not credible.” Dodrill
v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those
reasons must be “sufficiently specific to permit the
reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant's testimony.” Orteza v.
Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
March 28, 2016, the Commissioner superseded Social Security
Ruling (“SSR”) 96-7p, governing the assessment of
a claimant's “credibility, ” and replaced it
with SSR 16-3p. See SSR 16-3p, available
at2017 WL 5180304 (republished Oct. 25, 2017). SSR 16-3p
eliminates the reference to “credibility, ”
clarifies that “subjective symptom evaluation is not an
examination of an individual's character, ” and
requires the ALJ to consider all of the evidence in an
individual's record when evaluating the intensity and
persistence of symptoms. Id. at *2; see
also Trevizo, 871 F.3d at 678 n.5. The
Commissioner recommends that the ALJ examine “the
entire case record, including the objective medical evidence
and individual's statements about the intensity,
persistence, and limiting effects of symptoms statements and
other information provided by medical sources and other
persons; and any other relevant evidence in the
individual's case record.” Id. at *7. The
Commissioner recommends assessing: (1) the claimant's
statements made to the Commissioner, medical providers, and
others regarding the claimant's location, frequency and
duration of symptoms, the impact of the symptoms on daily
living activities, and other methods used to alleviate
symptoms; (2) medical source opinions, statements, and
medical reports regarding the claimant's history,
treatment, responses to treatment, prior work record, efforts
to work, daily activities, and other information concerning
the intensity, persistence, and limiting effects of an
individual's symptoms; and (3) non-medical source
statements, considering how consistent those statements are
with the claimant's statements about his or her symptoms
and other evidence in the file. See Id. at *6-7.
ALJ's evaluation of a claimant's subjective symptom
testimony may be upheld overall even if not all of the
ALJ's reasons for rejecting the testimony are upheld.
See Batson, 359 F.3d at 1197. The ALJ may not,
however, a reject testimony “solely because” the
claimant's symptom testimony “is not substantiated
affirmatively by objective medical evidence.”
Robbins, 466 F.3d at 883.
ALJ, applying the first step of the credibility framework,
found that “the claimant's severe medically
determinable impairments could reasonably be expected to
cause the alleged symptoms.” AR 28. In applying the
second step, however, the ALJ found that “the
claimant's statements concerning the intensity,
persistence, and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other
evidence in the record.” Id. In support of
that finding, the ALJ offered two rationales: (1) the
disparity between Plaintiffs testimony and her treatment
record; and (2) the disparity between Plaintiffs claims of
debilitating functioning and contemporaneous reports of
actual functioning. Id. Notably, although the ALJ
issued her decision April 22, 2016, the decision makes no
mention of SSR 16-3p in its evaluation of Plaintiffs
subjective symptom testimony. Compare SSR 16-3p,
available at2017 WL 5180304, at *13 (explaining SSR
16-3p became effective March 28, 2016) with AR 42
(ALJ decision, dated April 22, 2016); see also
Molina v. Astrue, 674 F.3d 1104, 1113 n.5 (9th Cir.
2012) (noting SSRs “do not carry the force of law, but
they are binding on ALJs nonetheless.” (citation and
quotation marks omitted)).
failed to allege with specificity the subjective symptom
testimony she believes the ALJ erroneously rejected. Instead,
Plaintiff broadly contends she “consistently
demonstrated serious mental health symptoms, with multiple
long-term contemporaneous treatment providers noting ongoing
limitations.” Pl.'s Op. Br. at 18. The Commissioner
responds the ALJ offered numerous reasons for ...