United States District Court, D. Oregon
Wilborn, Wilborn Law Office, Of Attorneys for Plaintiff.
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.
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
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
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.
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 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
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).
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.
The Decisions of the ALJ and Appeals Council
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.
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
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.
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 ...