United States District Court, D. Oregon
Richard F. McGinty, McGinty & Belcher, Of Attorneys for
J. Williams, United States Attorney, and Renata Gowie,
Assistant United States Attorney, United States
Attorney's Office, Alexis L. Toma, Special Assistant
United States Attorney, Office of General Counsel, Social
Security 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 his
application for Supplemental Security Income
(“SSI”). AR 499. For the reasons discussed below,
the Commissioner's decision is affirmed.
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, 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
protectively filed for SSI on April 27, 2011. In his initial
claim, Plaintiff alleged a disability onset date of November
15, 2007. AR 46. At his original hearing before an
Administrative Law Judge (“ALJ”), Plaintiff
amended his alleged onset date to April 27, 2011. AR 502.
Plaintiff alleged disability due to a herniated disc in his
lower back, hip dysplasia, right wrist arthritis, hernias,
vascular disorder in his legs, restless leg syndrome,
learning disability, and depression. AR 46. Plaintiff was
born October 5, 1970, and is currently 48 years old.
was 40 years old as of the disability onset date.
Plaintiff's claim was denied initially on September 1,
2011, and upon reconsideration on December 29, 2011.
Plaintiff's first hearing before an ALJ occurred on
February 6, 2013. AR 24. On February 22, 2013, ALJ John Bauer
found Plaintiff not disabled and not entitled to SSI under
the Social Security Act. AR 20.
then appealed ALJ Bauer's decision to the Appeals Council
and submitted new evidence, including an assessment by Dr.
David Freed, Ph.D. and treatment notes from Northwest Human
Services. AR 4. Despite this new evidence, the Appeals
Council denied Plaintiff's request for review on May 22,
2014. AR 1. Plaintiff subsequently filed a complaint in
district court on July 18, 2014, seeking judicial review of
the Commissioner's final decision denying his application
Court reversed the decision of ALJ Bauer. [Mike S.]
v. Colvin, 2015 WL 4994195, at *5 (D. Or. Aug. 19,
2015). The Court remanded for additional findings to (1)
consider the assessment of Dr. Freed and (2) resolve a
conflict between ALJ Bauer's assessment of
Plaintiff's residual functional capacity
(“RFC”) and the recommendations of two
nonexamining psychologists. Id.
received a second hearing on September 15, 2016, before
Administrative Law Judge Gene Duncan (the “ALJ”).
AR 502. On January 30, 2017, the ALJ issued a decision that
again found Plaintiff not disabled and not entitled to SSI.
AR 516. Plaintiff subsequently requested review of the
ALJ's decision, which is the final decision of the
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 t he meaning of the Social
Security Act.” Keyser v. Comm 'r Soc. Sec.
Admin., 648 F.3d 721, 724 (9th Cir. 2011); see
also 20 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 also 20 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
one, the ALJ found Plaintiff had not participated in gainful
activity since April 27, 2011. AR 504. At step two, the ALJ
found the following severe medical impairments, which more
than minimally affect Plaintiffs ability to work:
degenerative j oint and disc disease of the cervical,
thoracic, and lumbar spine; right wrist osteoarthritis;
congenital hip dysplasia; missing index finger from the
non-dominant left hand; learning disorder; and depressive
disorder, not otherwise specified. AR 505. The ALJ also noted
that Plaintiff had been evaluated for other symptoms and
complaints, some of which included: sleep apnea; small
inguinal hernia; hepatitis C; asthma; and restless leg
syndrome. Id. The ALJ concluded that these
conditions did not constitute severe impairments.
three, the ALJ found that Plaintiff does not have any
impairment or combination of impairments that meets the
severity of one of the listed impairments in 20 C.F.R. §
404, Subpart P, Appendix 1. Id.
then evaluated Plaintiffs RFC, considering both the evidence
available in Plaintiffs first hearing and the additional
evidence submitted to the Appeals Council. The ALJ revised
the RFC finding from the first hearing, and found that
Plaintiff had an RFC as follows:
[T]he claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 416.967(a)
subject to the following limitations. He can perform simple,
routine, and learned tasks. He can occasionally push or pull
with the right upper extremity. He can occasionally make
postural movements. He can perform work that does not require
him to climb ladders or work at heights. He can perform work
that avoids concentrated exposure to pulmonary irritants. He
can frequently grasp, handle, fine finger, and feel. He can
frequently balance, kneel, or climb ramps or stairs. He can
perform work that avoids walking on uneven surfaces.
four, the ALJ considered Plaintiffs RFC, testimony from the
vocational expert (“VE”), and the mental and
physical demands of Plaintiff s past relevant work as a floor
covering installer. AR 515. The ALJ concluded that Plaintiffs
RFC precluded performance of Plaintiffs past relevant work.
five, the ALJ considered Plaintiffs RFC, age, education, work
experience, and the VE's testimony to determine that jobs
exist in significant numbers in the national economy that
Plaintiff could perform. AR 516. These jobs included work as
an addressor, nut sorter, and document preparer. I ...