United States District Court, D. Oregon, Portland Division
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
brings this action for judicial review of the
Commissioner's final decision denying his application for
Disability Insurance Benefits (“DIB”) under Title
II of the Social Security Act in part. The Court has
jurisdiction under 42 U.S.C. § 405(g) (incorporated by
42 U.S.C. § 1382(c)(3)). Because the Administrative Law
Judge (ALJ) improperly discounted medical opinion testimony,
the Court REVERSES the Commissioner's decision and
REMANDS this case for further administrative proceedings.
was born on January 15, 1961 and was fifty years old on
February 1, 2011, the alleged disability onset date. Tr. 210,
Plaintiff met the insured status requirements of the Social
Security Act (“SSA” or “Act”) through
September 30, 2016. Tr. 973. Plaintiff has at least a high
school education but is unable to perform any past relevant
work. Tr. 982. Plaintiff claims he is disabled based on
conditions including memory loss, vision loss, high blood
pressure, depression, anxiety, and claustrophobia. Tr. 238.
benefits application was denied initially on November 13,
2012, and upon reconsideration on March 5, 2013. Tr. 970. A
hearing was held before Administrative Law Judge Paul Robeck
on June 20, 2014. Id.; Tr. 41-85. ALJ Robeck issued
a written decision on June 26, 2014, finding that, as of
January 1, 2014, Plaintiff was disabled and entitled to
benefits. Tr. 970; 20-33. Plaintiff was therefore not
disabled or entitled to benefits between November 1, 2011 and
December 31, 2013. Tr. 20-33. The Appeals Council declined
review, rendering ALJ Robeck's decision the
Commissioner's final decision. Tr. 1-6. Plaintiff then
challenged the Commissioner's final decision in the
District of Oregon. Tr. 970. On August 17, 2016, the district
court remanded the case to the Commissioner for additional
administrative proceedings. Id. On November 14,
2016, the Appeals Council remanded the case but only as it
related to the period prior to January 1, 2014. Id.
remand, a new hearing was held before ALJ Robeck on May 2,
2017. The ALJ issued a written decision on July 5, 2017,
finding that, as of January 28, 2014,  Plaintiff was
disabled and entitled to benefits. Tr. 970-84, Plaintiff was
therefore not disabled or entitled to benefits between
November 1, 2011 and January 27, 2014. Id. The
Appeals Council declined review, rendering ALJ Robeck's
decision the Commissioner's final decision. Tr. 1051-56.
central issue here is whether the ALJ properly determined
that Plaintiff was not disabled during the relevant time
period: February 1, 2011 through January 28, 2014.
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. 973.
two, the ALJ determined that as of February 1, 2011,
Plaintiff “had the following severe impairments: status
post left rotator cuff surgery, mild narrowing of the medial
compartment of the left knee and chondrocalcinosis of the
right knee per x-ray, adjustment disorder with depression and
anxiety, personality disorder, and methamphetamine and
alcohol abuse.” Tr. 973. Beginning on January
28, 2014, the ALJ found Plaintiff's cognitive disorder to
be severe as well. Id. The ALJ determined that
Plaintiff's gastroesophageal reflux disease, depression,
anxiety, and history of cocaine abuse were not severe.
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. 973-74. In particular, the ALJ found that
Plaintiff's physical conditions did not meet the
requirements of Listing 1.02 or 1.04, and his mental
impairments did not satisfy paragraph “C” of the
applicable mental disorder listings. Tr. 974.
proceeding to step four, the ALJ found that, before January
28, 2014, Plaintiff had the residual functional capacity
(RFC) to perform light work except that “he could
occasionally balance, climb, stoop, kneel, crouch, or crawl,
needed to avoid concentrated exposure to vibration, was
limited to unskilled work, and could have occasional public
contact.” Tr. 974. Beginning on January 28, 2014, the
ALJ concluded that Plaintiff's “cognitive/memory
impairment [became] severe enough to preclude sustaining
fulltime work.” Tr. 981.
four, the ALJ determined that Plaintiff was unable to perform
any past relevant work. Tr. 982.
five, the ALJ relied on the testimony of a vocational expert
to find that prior to January 28, 2014, there were jobs that
existed in significant numbers in the national economy that
Plaintiff could have performed. Tr. 982-83. After January 28,
2014 there were no jobs that existed in significant numbers
in the national economy that Plaintiff could perform. Tr.
the ALJ concluded that the Plaintiff was not disabled prior
to January 28, 2014 but became disabled, and remained
disabled, as of that date. Tr. 984.
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
also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir.
2007) (“Where the evidence as a whole can support
either a grant or a denial, [the court] may not substitute
[its] judgment for the ALJ's.”) (internal quotation
raises six issues on appeal. He argues the ALJ erred by: (1)
improperly rejecting medical opinion testimony; (2)
improperly categorizing certain impairments as non-severe at
step two; (3) improperly evaluating lay witness statements;
(4) improperly rejecting Plaintiff's subjective symptom
allegations; (5) failing to conduct an adequate analysis at
step five; and (6) establishing an improper onset date.
Because the ALJ improperly rejected medical opinion
testimony, the Commissioner's decision is reversed and
remanded for further administrative proceedings.
Medical Opinion Testimony
first argues the ALJ improperly rejected the opinions of five
medical sources. Social security law recognizes three types
of physicians: (1) treating, (2) examining, and (3)
nonexamining. Garrison v. Colvin, 759 F.3d 995, 1012
(9th Cir. 2014). Generally, more weight is given to the
opinion of a treating physician than to the opinion of those
who do not actually treat the claimant. Id.; 20
C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2).
More weight is also given to an examining physician than to a
nonexamining physician. Garrison, 759 F.3d at 1012.
If a treating physician's medical opinion is supported by
medically acceptable diagnostic techniques and is not
inconsistent with other substantial evidence in the record,
the treating physician's opinion is given controlling
weight. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th
Cir. 2014); Orn v. Astrue, 495 F.3d 625, 631 (9th
treating physician's opinion is not contradicted by
another doctor, the ALJ may reject it only for “clear
and convincing” reasons supported by substantial
evidence in the record. Ghanim, 763 F.3d at 1160-61.
the treating physician's opinion is contradicted by
another doctor, the ALJ may not reject the treating
physician's opinion without providing “specific and
legitimate reasons” which are supported by substantial
evidence in the record. Id. at 1161; Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). And, when
a treating physician's opinion is not given
“controlling weight” because it is not
“well-supported” or because it is inconsistent
with other substantial evidence in the record, the ALJ must
still articulate the relevant weight to be given to the
opinion under the factors provided for in 20 C.F.R.
§§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6);
Id. at 1161; Orn, 495 F.3d at 632-33.
“These factors include the ‘[l]ength of the
treatment relationship and the frequency of examination'
by the treating physician, the ‘[n]ature and extent of
the treatment relationship' between the patient and the