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Belinda, W. v. Berryhill

United States District Court, D. Oregon

January 22, 2019

BELINDA, W.[1], Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.

          Tim Wilborn, Wilborn Law Office, Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney, United States Attorney's Office, Thomas M. Elsberry, Special Assistant United States Attorney, Office of General Counsel, Social Security Administration, Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon United States District Judge.

         Belinda W. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her application for Social Security Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). For the following reasons, the Commissioner's decision is REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

         STANDARD OF REVIEW

         The 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).

         Where 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 1226.

         BACKGROUND

         A. Plaintiff's Application

         Plaintiff applied for DIB and SSI on July 26, 2010, alleging disability beginning on February 6, 2008. Plaintiff alleged disability based on a combination of impairments, including lower back spasms, type II diabetes, anxiety attacks, edema in her legs, obesity, a thyroid condition, and migraines. AR 43. Plaintiff was born April 14, 1962, was 48 years old at the alleged disability onset date, and is now 56 years old. Her applications were denied initially and upon reconsideration. AR 51, 125. She timely requested a hearing before an administrative law judge (“ALJ”), and the administrative hearing was held on August 12, 2015. AR 9. On December 29, 2015, the ALJ found Plaintiff to be not disabled. AR 141. After this decision, Plaintiff appealed the ALJ's decision to the Appeals Council. AR 229-237. The Appeals Council adopted the ALJ's decision in part, but did not agree that Plaintiff was unable to perform any of her past relevant work. AR 5. The Appeals Council concluded that Plaintiff was able to perform her past work as a call center customer service technician and was, therefore, not disabled. Id. The Appeals Council's decision thus became the final decision of the Commissioner. AR 6. Plaintiff seeks judicial review of that decision.

         B. The Sequential Analysis

         A 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 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. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment “severe” under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or equal” one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's “residual functional capacity” (“RFC”). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966 (describing “work which exists in the national economy”). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.

         C. The Decisions of the ALJ and Appeals Council

          The ALJ first noted that Plaintiff met the insured requirements of the Social Security Act through December 31, 2013. The ALJ then engaged in the sequential analysis required by regulation. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after the alleged onset date, February 6, 2008. AR 132. At step two, the ALJ concluded that Plaintiff had the following severe impairments: morbid obesity; type II diabetes mellitus; discogenic and degenerative disorder of the lumbar spine; knee pain; and probable obstructive sleep apnea. Id.

         At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or equals one of the specific impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1. AR 134. The ALJ then determined that Plaintiff has the following RFC:

[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant is further limited to: standing/walking for two hours, and sitting for six hours during an eight-hour workday; work that would permit a sit/stand option allowing the claimant to alternate between sitting and standing positions once each hour for five minutes, but she would not leave the work station; occasional climbing of ladders, ropes, scaffolds, ramps or stairs; occasional stooping, kneeling, crouching and crawling; frequent balancing; and avoiding concentrated exposure to extreme cold, excessive vibration, the operational control of moving machinery, unprotected heights, and hazardous machinery.

AR 136.

         Relying on testimony of the vocational expert, the ALJ found that Plaintiff could not perform her past relevant work. The ALJ then found at step five that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including callout operator, charge account clerk, and table worker. In making this determination, the ALJ again relied on the testimony of the vocational expert.

         The Appeals Council agreed with and adopted the ALJ's findings at steps one through three of the sequential analysis. The Appeals Council disagreed, however, with the ALJ's finding at step four that Plaintiff is unable to perform any of her past relevant work. The Appeals Council determined that the limitations set out in the RFC do not preclude Plaintiff's performance of her past relevant work as a call ...


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