United States District Court, D. Oregon
R.J. Porter J.P. LAW P.C. Attorney for Plaintiff
Gowie Martha A. Boden Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
Angela Y. brings this action for judicial review of the
Commissioner's final decision denying her application for
Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). This Court
has jurisdiction under 42 U.S.C. § 405(g) (incorporated
by 42 U.S.C. § 1382(c)(3)). The Commissioner's
decision is reversed and remanded for further proceedings.
applied for DIB and SSI on December 12, 2013, alleging
disability as of August 12, 2010. Tr. 104-05. Plaintiff amended
her onset date to October 9, 2012, at the hearing. Tr. 20,
48. Plaintiff's date last insured (“DLI”) is
December 31, 2015. Tr. 104-05. Her application was denied
initially and on reconsideration. Tr. 189-93, 195-216. On May
4, 2016, Plaintiff appeared, with counsel, for a hearing
before an Administrative Law Judge (ALJ). Tr. 46. On June 2,
2016, the ALJ found Plaintiff not disabled. Tr. 37. The
Appeals Council denied review. Tr. 1.
initially alleged disability based on bipolar disorder,
agoraphobia, depression, chronic pain, fibromyalgia,
migraines, arthritis, asthma, allergies, irritable bowel
syndrome, and “neck/spine/skull” pain. Tr. 343.
She was 37 at the time of her amended alleged onset date and
41 at the time of the administrative hearing. Tr. 36.
Plaintiff has a high school education and past relevant work
experience as a pharmacy technician. Tr. 36.
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. §
423(d)(1)(A). Disability claims are evaluated according to a
five-step procedure. See, e.g., Valentine v.
Comm'r, 574 F.3d 685, 689 (9th Cir. 2009). The
claimant bears the ultimate burden of proving disability.
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.
137 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 the impairment
meets or equals “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 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. 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. §§ 404.1566, 416.966.
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity after her amended alleged onset
date of October 9, 2012. Tr. 22. Next, at steps two and
three, the ALJ determined that Plaintiff has the following
severe impairments: “fibromyalgia; migraines/headaches;
irritable bowel syndrome; obesity; and asthma.” Tr. 22.
However, the ALJ determined that Plaintiff's impairments
did not meet or medically equal the severity of a listed
impairment. Tr. 24. At step four, the ALJ concluded that
Plaintiff has the residual functional capacity to perform
light work as defined in 20 CFR §§ 404.1567(b) and
416.967(b) with the following limitations:
[T]he claimant can frequently push and pull with the
bilateral upper extremities; can frequently climb ramps and
stairs; can occasionally climb ladders, ropes, and scaffolds;
can occasionally stoop, kneel, crouch, and crawl; should
avoid concentrated exposure to extreme cold, vibration and
hazards (such as unprotected heights and exposure [to] moving
mechanical parts); should avoid even moderate exposure to
fumes, odors, dusts, gases and poor ventilation; can
understand and remember simple instructions; has sufficient
concentration, persistence, and pace to complete simple,
routine tasks for a normal workday and workweek with normal
breaks; should have only occasional contact with general
public and coworkers; should have no over the shoulder
supervision; and should be in a workplace with few changes to
the work setting.
Tr. 23. Because of these limitations the ALJ concluded that
Plaintiff could not perform her past relevant work as a
Pharmacy Technician. Tr. 36. But at step five the ALJ found
that there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform, such as
“Folder, ” “Marker, ” and
“Assembler of Small Products I.” Tr. 36-37. Thus,
the ALJ concluded that Plaintiff is not disabled. Tr.
reviewing court must affirm the Commissioner's decision
if the Commissioner applied proper legal standards and the
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence” means “more than a
mere scintilla, but less than preponderance.” Bray
v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th
Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995)). It is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id.
court must weigh the evidence that supports and detracts from
the ALJ's conclusion. Lingenfelter v. Astrue,
504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The
reviewing court may not substitute its judgment for that of
the Commissioner. Id. (citing Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see
also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001). Variable interpretations of the evidence are
insignificant if the Commissioner's interpretation is a
rational reading. Id.; see also Batson, 359
F.3d at 1193. However, the court cannot not rely upon
reasoning the ALJ did not assert in affirming the ALJ's
findings. Bray, 554 F.3d at 1225-26 (citing SEC
v. Chenery Corp., 332 U.S. 194, 196 (1947)).
contends that the ALJ erred by: (1) improperly discrediting
Plaintiff's subjective symptom testimony; (2) giving
partial weight to the opinion of examining licensed
psychologist, Keli Dean, Psy.D; and (3) giving little weight
to the opinion of Jeremy Adversalo, LPC. Pl. Op. Br. 19-26,
ECF 12. Because the Court finds the ALJ erred in giving
partial weight to the opinion of Dr. Dean, this case is
reversed and remanded for further proceedings.