United States District Court, D. Oregon
Merrill Schneider, Schneider Kerr & Robichaux, P.O. Box
14490, Portland, Oregon 97293. Of Attorney for Plaintiff.
J. Williams, United States Attorney, and Renata Gowie,
Assistant United States Attorney, United States
Attorney's Office, 1000 S.W. Third Avenue, Suite 600,
Portland, OR 97204; Lisa Goldoftas, Special Assistant United
States Attorney, Office of General Counsel, Social Security
Administration, 701 Fifth Avenue, Suite 2900 M/S 221A,
Seattle, WA 98104. Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
Joshua K. (“Plaintiff”) seeks judicial review of
the final decision by the Social Security Commissioner
(“Commissioner”) denying Plaintiff's
application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401-33, 1381-83f. This
Court has jurisdiction to review the Commissioner's
decision pursuant to 42 U.S.C. § 405(g). In this case,
both parties agree that the ALJ's decision is flawed, and
therefore this case must be reversed and remanded. The
parties disagree, however, on whether the case must be
remanded for further proceedings, as Defendant advocates, or
for an award of benefits, as Plaintiff urges. For the reasons
discussed below, the Commissioner's decision denying
Plaintiff's application for DIB and SSI is REVERSED and
REMANDED for further proceedings.
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
was born on July 28, 1979. AR 46. He has a limited education
(up to ninth grade), can communicate in English, and has
performed construction work and temporary labor sporadically,
but has not worked since 2012. AR 47, 53-58. He filed for DIB
and SSI on June 26, 2013, alleging disability due to
degenerative disc disease status post microdiscectomy,
cannabis abuse, opiate abuse, and major depressive disorder.
application was denied initially and upon reconsideration,
and he requested a hearing before an administrative law judge
(“ALJ”). AR 40. An administrative hearing was
held on November 10, 2015. Id. Plaintiff was
represented by counsel and testified. Id. In March
of 2016, the ALJ issued a written decision denying
Plaintiff's application. AR 158-79. Plaintiff sought
review by the Appeals Council. The Appeals Council granted
Plaintiff's request for review and remanded to the ALJ to
rectify the issues it identified with the ALJ's initial
decision. AR 180-85. The ALJ held another hearing, on
December 20, 2016, at which Plaintiff was once again
represented by counsel and he again testified. The ALJ issued
a written decision once again denying Plaintiff's
application on March 1, 2017. AR 17-31. Plaintiff now seeks
judicial review of that decision.
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
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. §§