United States District Court, D. Oregon, Eugene Division
KATHRYN TASSINARI MARK A. MANNING Harder, Wells, Baron &
Manning, P.C., BILLY J. WILLIAMS United States Attorney,
RENATA GOWIE Assistant United States Attorney District of
GOLDOFTAS Special Assistant United States Attorney Office of
the General Counsel 701 Fifth Ave., Suite 2900 M/S 221A
Seattle, WA 98104-7075 Of Attorneys for Defendant
OPINION AND ORDER
Clarke United States Magistrate Judge
Michelle R. ("Plaintiff) seeks judicial review of the
final decision by the Social Security Commissioner
("Commissioner") denying her application for
Supplemental Security Income ("SSI") under Title
XVI of the Social Security Act ("SSA"). This Court
has jurisdiction to review the Commissioner's decision
pursuant to 42 U.S.C. § 405(g). Based on a careful
review of the record, the Commissioner's decision is
REVERSED and the case REMANDED for further proceedings.
filed applications for Social Security Income
("SSI") and Disability Insurance Benefits
("DIB") on November 5, 2012, alleging disability as
of October 1, 2009. Tr. 16. Her applications were denied
initially and upon reconsideration, and a hearing was held on
May 1, 2015, before an Administrative Law Judge
("ALJ"); Plaintiff was represented by counsel and
testified, as did a vocational expert ("VE"). Tr.
73-102. At the hearing, Plaintiff amended her alleged
disability onset date to January 16, 2012, and withdrew her
application for DIB. Tr. 16. On June 24, 2015, ALJ John
Michaelsen issued a decision finding Plaintiff not disabled.
Tr. 16-29. Plaintiff requested timely review of the ALJ's
decision and, after the Appeals Council denied her request
for review, filed a complaint in this Court. Tr. 1-3.
1964, Plaintiff was 47 years old on the alleged disability
onset date. Tr. 27. She graduated high school and completed
three years of college. Tr. 254. She previously worked as a
broker at an insurance brokerage. Tr. 254. She alleges
disability due to fibromyalgia; thyroid disease; and asthma.
January 16, 2012, Plaintiff underwent a total abdominal
hysterectomy and a left salpingo-oophorectomy. Tr. 321.
Plaintiff reported pain, fatigue, and weight gain after her
surgery, and on June 8, 2012, she underwent a second
procedure involving lysis of adhesions and vaginal
trachelectomy. Tr. 421. Following her second surgery,
Plaintiff stated that her pain was completely resolved with
no residual complaints, and her surgeon opined that her
incisions were healing "beautifully" and her
postoperative course was "excellent." Tr. 413.
Later, on June 27, 2013, Plaintiff underwent a pelvic
ultrasound which revealed an ovarian cyst. Plaintiff was
counseled to improve her diet, exercise more, and her nurse
practitioner encouraged her to seek naturopathic or
acupuncture-related remedies. Tr. 340, 344.
was diagnosed with fibromyalgia by a rheumatologist on
November 12, 2014, and was prescribed Gabapentin. Tr. 378. On
December 10, 2014, Plaintiff stated that she would "just
tough out the flares" and not take her fibromyalgia
prescriptions daily, as recommended. Tr. 596.
also experienced mild oropharyngeal dysphagia, or difficulty
swallowing, at various times throughout the adjudicatory
period, as well as neck tension, breathing discomfort, and
voice hoarseness. Tr. 700. Plaintiff worked with a speech
therapist and speech and language pathologist, who taught her
swallowing exercises to manage her conditions. Tr. 494.
August 6, 2013, an x-ray of Plaintiff s lumbosacral spine
revealed "advanced disc space narrowing at ¶ 4-L5
and L5-S1" vertebrae, in addition to "severe facet
joint arthrosis" at the L4-L5 and L5-S1 vertebral
levels. Tr. 455. On October 31, 2012, Plaintiff was diagnosed
with lower back pain. Tr. 383. On November 15, 2013, an MRI
of Plaintiffs lumbar spine revealed "advanced disc space
narrowing," as well as "disc space narrowing
desiccation" and "annular fissures" at the
L4-L5 and L5-S1 vertebral levels. Tr. 625. Also on November
15, 2013, an MRI of Plaintiffs cervical vertebrae revealed
disc desiccation from the C3 to C6 vertebral levels, with the
most severe desiccation at ¶ 5-C6. Tr. 623. Plaintiff
reported neck and shoulder pain in early 2015, and briefly
attended physical therapy to help manage her condition. Tr.
also experienced asthmatic symptoms, but on May 3, 2012, her
physician noted that her asthma was "well
controlled" with medication. Tr. 442. In stuffy, indoor
settings, Plaintiff stated that she used her inhaler up to 10
times per week. Tr. 586. Plaintiff also sought treatment for
hearing loss and reported feeling "wobbly" while
standing still. Tr. 579. On September 11, 2013, Plaintiff saw
a hearing specialist, who determined that she suffered from
"serious effusion of her right ear," and mixed
hearing loss bilaterally. Tr. 796. Plaintiff underwent a
procedure to insert a tube in her right ear; subsequent
audiological testing revealed moderate low frequency
sensorineural loss in her right ear and mild low and
mid-frequency sensorineural loss, but "excellent"
word recognition in both ears. Tr. 560.
was prescribed a small amount of Xanax for panic attacks on
October 31, 2013. Tr. 371. On March 4, 2014, Plaintiff stated
that Xanax briefly helped, but her symptoms returned shortly
after taking it. Tr. 583. She was prescribed Klonopin, but
did not tolerate the medication and was prescribed Ativan
shortly afterwards. Tr. 584-85. Plaintiff was diagnosed with
PTSD on July 28, 2014. Tr. 589. In February 2015, Plaintiff
began therapy and was diagnosed with an anxiety disorder. Tr.
600, 817. By March 2015, Plaintiffs mood improved and she
experienced fewer anxiety attacks and "less intense
symptoms in general." Tr. 812. Her overall functionality
had also improved. Tr. 812.
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). Each step is potentially
dispositive. 20 C.F.R. § 416.920(a)(4). The five-step
sequential process asks the following series of questions:
the claimant performing "substantial gainful
activity?" 20 C.F.R. § 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. § 416.910. If the claimant is performing such
work, she is not disabled within the meaning of the Act. 20
C.F.R. § 416.920(a)(4)(i). If the claimant is not
performing substantial gainful activity, the analysis
proceeds to step two.
the claimant's impairment "severe" under the
Commissioner's regulations? 20 C.F.R. §
416.920(a)(4)(ii). Unless expected to result in death, an
impairment is "severe" if it significantly limits
the claimant's physical or mental ability to do basic
work activities. 20 C.F.R. § 416.921(a). This impairment
must have lasted or must be expected to last for a continuous
period of at least 12 months. 20 C.F.R. § 416.909. If
the claimant does not have a severe impairment, the analysis
ends. 20 C.F.R. § 416.920(a)(4)(h). If the claimant has
a severe impairment, the analysis proceeds to step three.
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. § 416.920(a)(4)(iii). If
the impairment does not meet or equal one or more of the
listed impairments, the analysis proceeds beyond step three.
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. §§ 416.920(e); 416.945(b)-(c). After the ALJ
determines the claimant's RFC, the analysis proceeds to
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. § 416.920(a)(4)(iv). If the
claimant cannot perform his or her past relevant work, the
analysis proceeds to step five.
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. §§ 416.920(a)(4)(v); 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. The Commissioner bears the burden of
proof at step five. Id. at 953-54. 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." Tackett v. Apfel, 180 F.3d 1094,
1100 (9th Cir. 1999); see also 20 C.F.R. §
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. §
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.