United States District Court, D. Oregon, Portland Division
Merrill Schneider SCHNEIDER KERR & ROBICHAUX Attorney for
J. Williams Renata Gowie Thomas M. Elsberry Attorneys for
OPINION & ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE.
Christopher V. brings this action seeking judicial review of
the Commissioner's final decision to deny disability
insurance benefits (DIB) and supplemental security income
(SSI). This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)).
I reverse the Commissioner's decision and remand for
applied for SSI and DIB on January 21, 2014, alleging an
onset date of January 15, 2008. Tr. 211-16, 217-23. His
applications were denied initially and on reconsideration.
Tr. 74-86, 134-38 (DIB Initial); 87-89, 139-42 (SSI Initial);
100-13, 145-55 (DIB Recon.); 114-31, 156-66 (SSI Recon.).
April 21, 2016, Plaintiff appeared, with counsel, for a
hearing before an Administrative Law Judge (ALJ). Tr. 34-73.
On June 21, 2016, the ALJ found Plaintiff not disabled. Tr.
12-33. The Appeals Council denied review. Tr. 1-5.
alleges disability based on depression, anxiety,
post-traumatic stress disorder, shoulder problems, and back
problems. Tr. 238, 281. At the time of the hearing, he was
thirty-five years old. Tr. 211 (showing date of birth). He
has a GED and past relevant work experience as a dishwasher
and a construction laborer. Tr. 63, 239.
claimant is disabled if 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. §§
claims are evaluated according to a five-step procedure.
See Valentine v. Comm'r, 574 F.3d 685, 689 (9th
Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). 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). In 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 plaintiff'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 perform past relevant work, the claimant is not disabled.
If the claimant cannot perform past relevant work, the burden
shifts to the Commissioner. In 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 his 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 determined that Plaintiff met the insured status
requirements of the Social Security Act through March 31,
2013, and had not engaged in substantial gainful activity
since his alleged onset date of January 15, 2008. Tr. 17. At
step two, the ALJ determined that Plaintiff has severe
impairments of lumbar spine spasms, a possible right rotator
cuff tear, anxiety, and depression. Tr. 18. However, at step
three, the ALJ found that Plaintiff's impairments did not
meet or equal, either singly or in combination, a listed
impairment. Tr. 18-21.
four, the ALJ concluded that Plaintiff has the RFC to perform
light work as defined in 20 C.F.R. §§ 404.1567(b),
416.967(b), but with several limitations including no
crawling; occasional performance of other postural tasks; no
climbing ladders, ropes, or scaffolds; overhead reaching only
rarely; avoidance of exposure to extremes of temperature,
vibration, and other workplace hazards; occasional
interaction with supervisors and co-workers; and only
incidental contact with the general public. Tr. 21.
this RFC, the ALJ determined that Plaintiff is unable to
perform any of his past relevant work. Tr. 25. However, at
step five, the ALJ determined that Plaintiff is able to
perform jobs that exist in significant numbers in the economy
such as electronics worker and small products assembler. Tr.
26-27. Thus, the ALJ determined that Plaintiff is not
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). The court considers 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 and brackets 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 marks
contends that the ALJ made the following errors: (1)
improperly rejected the opinions of medical sources; (2)
failed to find several impairments severe at step two; (3)
improperly rejected his subjective limitations testimony; and
(4) failed to conduct an adequate analysis at step five.
Defendant concedes that the ALJ erred in his consideration of
the opinions of state agency consultant Disability
Determination Services (DDS) physicians because the ALJ
purported to give their opinions great weight but omitted
their assessments regarding Plaintiff's upper extremity
and bilateral handling and fingering limitations from the
RFC. Def.'s Mem. & Mot. for Remand 4, ECF 21. Based
on this concession, Defendant moves to remand for additional
proceedings. Plaintiff contends that other non-conceded
errors warrant remand for an award of benefits.
Defendant's Argument Regarding the Limitation of Remand
argues that while remand is appropriate, the remand should be
limited to Plaintiff's SSI Title XVI claim and that the
ALJ's decision as to the DIB Title II claim should be
affirmed. Defendant relies on the ALJ's discussion of the
DDS physician opinions. In discussing the credibility of
Plaintiff's symptom testimony, the ALJ recited much of
the medical evidence and included this paragraph:
On May 5, 2014, state agency consultants indicated that the
claimant had no severe impairments and that there was
insufficient evidence to determine whether the claimant had
been disabled prior to his date last insured for Title 2
purposes. [Tr, 86, 99]. On October 27, 2014, state agency
consultants reconsidered the claimant's applications and
confirmed the initial determination that the claimant had no
severe impairments prior to the date last insured. [Tr. 109].
For Title 16 purposes, state agency consultants were of the
opinion the claimant had a severe impairment from anxiety and
personality disorders and indicated he could perform work of
a light exertional demand level with occasional postural
tasks, limitations in reaching, and without more than
occasional changes and limited social interactions. [Tr.
128]. The undersigned gives great weight to the opinion
of the state agency consultants regarding the claimant's
residual functional capacity on Title 16
reconsideration. Although the consultants did not offer
an opinion of the severity of the claimant's back and
shoulder, the undersigned has drawn all inferences in favor
of the claimant and accepted the opinion that the physical
functionality described by state agency consultants is
supported by the consultative examination performed by John
Ellison, M.D. [Tr. 512-14]. The opinion of state agency
consultants regarding the claimant's mental function was
also given great weight as consistent with the consultative
examinations results offered by Dr. Starbird. [Tr.
Tr. 24-25 (emphasis added).
focuses on the May 5, 2014 and October 27, 2014 reports on
the Title II DIB claim. Defendant observes that as the ALJ
noted, both reports indicated that Plaintiff had no severe
impairments and there was insufficient evidence to determine
whether Plaintiff was disabled before his date of last
insured for the Title II claim. Defendant argues that
"[t]he ALJ did not reject these opinions nor has
Plaintiff challenged these opinions." Def.'s Mem
& Mot. to Remand 4. Defendant acknowledges that the ALJ
did not explicitly accept these opinions. Id. at
4-5. But, Defendant argues that the ALJ's acceptance is
supported by reasonably drawn inferences and thus must be
upheld. Based on this, Defendant argues that only the SSI
Title XVI claim should be remanded.
argues that Defendant's position lacks merit. As
Plaintiff notes, and as seen in the italicized portion of the
ALJ's discussion above, the ALJ expressly adopted only
the Title XVI opinions. He made no comment about the Title II
claim, meaning he made no affirmative finding that the Title
II claim lacked sufficient evidence. Plaintiff further notes
that had the ALJ intended to reject the Title II claim based
on these opinions, he would have denied the Title II claim at
step two because those consultants opined that Plaintiff had
no severe impairments in regard to the Title II claim. The
ALJ would have then limited ...