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 her application for
Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act. The Court has jurisdiction
under 42 U.S.C. § 405(g) (incorporated by 42
U.S.C.§ 1382(c)(3)). The Court REVERSES the
Commissioner's decision and REMANDS this case for further
was born on December 5, 1973 and was thirty-nine years old on
July 31, 2013, the alleged disability onset date. Tr. 16,
Plaintiff has at least a high school education but is unable
to perform any past relevant work. Tr. 26. Plaintiff claims
she is disabled based on, among other things, fibromyalgia,
bipolar disorder, posttraumatic stress disorder, and
generalized anxiety disorder.
filed a prior application for disability insurance benefits
on January 20, 2011 and a prior application for supplemental
security income on February 18, 2011. Tr. 16. These
applications were denied initially on July 26, 2011, and upon
reconsideration on December 27, 2011. Tr. 16. A hearing was
held before Administrative Law Judge Steve Lynch on May 21,
2013. Tr. 16, 33-57. ALJ Lynch issued a written decision on
May 31, 2013, finding that Plaintiff was not disabled or
entitled to benefits. Tr. 16. Plaintiff failed to file a
timely request for review, rendering ALJ Lynch's decision
the Commissioner's final decision.
11, 2014, Plaintiff protectively filed this application for
supplemental security income. The claim was denied initially
on August 21, 2014, and upon reconsideration on February 13,
2015. Tr. 16. A hearing was held before Administrative Law
Judge Hoenninger. Tr. 16, 58-82. ALJ Hoenninger issued a
written decision on February 17, 2017, finding that Plaintiff
was not disabled or entitled to benefits. The Appeals Council
declined review, rending ALJ Hoenninger's decision the
Commissioner's final decision that Plaintiff now
challenges before this Court. Tr. 1-6.
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 application date. Tr.
two, the ALJ determined that Plaintiff had “the
following severe impairments: Fibromyalgia, obesity,
degenerative joint disease of the bilateral knees, bilateral
carpal tunnel syndrome, and affective disorder and an anxiety
disorder.” Tr. 18-19. The ALJ also determined
that Plaintiff's “headaches/occipital neuralgia,
degenerative disc disease of the cervical and lumbar spine,
and bilateral hearing loss” were not severe. Tr. 19
(citations to the record omitted).
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. 19-21. Before proceeding to step four, the
ALJ found that Plaintiff had the residual functional capacity
(RFC) to perform light work with the following exceptions:
She can frequently climb ramps and stairs. She can frequently
climb ladders, ropes and scaffold. She can frequently stoop,
kneel, crouch, and craw. She can frequently handle and finger
bilaterally. She can understand and remember simple
instructions. She has sufficient concentration, persistence
and pace to complete simple entry-level tasks. She can
occasionally interact with the general public and coworkers.
four, the ALJ determined that Plaintiff was unable to perform
any past relevant work, either as a health care provider or a
sales assistant. Tr. 26. At step five, the ALJ relied on the
testimony of a vocational expert to find that there were jobs
that existed in significant numbers in the national economy
that Plaintiff could have performed. Tr. 26-27. Accordingly,
the ALJ concluded that Plaintiff was not disabled. Tr. 27.
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 three issues on appeal. She argues the ALJ erred by:
(1) knowingly causing a prohibited ex parte communication;
(2) giving great weight to the Cooperative Disability
Investigations Unit (CDIU)'s report and rejecting the
opinions of treating and examining providers; and (3) failing
to identify Plaintiff's headaches and lumbar degenerative
disease as severe impairments.