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Djuana, J. v. Berryhill

United States District Court, D. Oregon

January 22, 2019

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

          Merrill Schneider, Schneider Kerr & Robichaux, Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney, United States Attorney's Office, Jordan D. Goddard, 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.

         Djuana, J. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her application for Supplemental Security Income (“SSI”). For the reasons discussed below, the Court REVERSES the Commissioner's decision and REMANDS for further proceedings consistent with this opinion.

         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 protectively filed for SSI on November 4, 2011. AR 254. In her claim, Plaintiff alleged a disability onset date of January 15, 2004. AR 252. Plaintiff alleged disability due to anxiety; fibrosis; drug and alcohol problems; chronic pain; and bipolar disorder. AR 257. Plaintiff was born on September 25, 1971, and she was 32 years old as of the alleged disability onset date. AR 87. Plaintiff is currently 47 years old. Id.

         Plaintiff's claim was denied initially on February 9, 2012, and upon reconsideration on August 8, 2012. Plaintiff's first hearing before an Administrative Law Judge (“ALJ”) occurred on June 4, 2014, but was continued to allow Plaintiff to seek legal representation and for development of the record. AR 68-73. Plaintiff appeared before a new ALJ (“the ALJ”) with the assistance of counsel on July 23, 2015. On September 22, 2015, the ALJ found Plaintiff not disabled and not entitled to SSI under the Social Security Act. AR 30.

         Plaintiff then appealed the ALJ's decision to the Appeals Council and submitted an updated disability report. AR 311-318. The Appeals Council denied Plaintiff's request for review on September 13, 2017, making the ALJ's decision the final decision of the Commissioner. AR 1. Plaintiff subsequently filed a complaint in district court on November 16, 2017, seeking judicial review of the Commissioner's final decision denying Plaintiff's application for SSI.

         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 determining whether an applicant is disabled within the meaning of the Social Security Act.” 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 ALJ's Decision

         At step one, the ALJ found that Plaintiff had not participated in substantial gainful activity since November 4, 2011. AR 22. At step two, the ALJ found the following severe medical impairments, which more than minimally affect Plaintiff's ability to work: left thumb carpometacarpal degenerative joint disease; left great toe degenerative joint disease; and substance abuse in remission. Id. The ALJ also concluded that Plaintiff's anxiety did not cause more than minimal limitation to the Plaintiff's ability to perform basic work activities and thus was non-severe. AR 23.

         At step three, the ALJ found that Plaintiff does not have any impairment or combination of impairments that meets the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. AR 24. The ALJ gave particular attention to Listing 1.02, major dysfunction of a joint, but concluded that Plaintiff's injuries did not satisfy the requirements for this listing. AR 24.

         The ALJ then evaluated Plaintiff's RFC, and found that Plaintiff had an RFC as follows:

[T]he claimant has the residual functional capacity to perform light work . . . including the ability to do the following. She can never climb ladders. She can occasionally climb stairs. She can frequently stoop, kneel, crouch and crawl. She can frequently handle. She can perform work that involves few workplace changes.

AR 24.

         At step four, the ALJ considered Plaintiff's RFC, testimony from the vocational expert (“VE”), and the mental and physical demands of Plaintiff's past relevant work as a home attendant. AR 28. The ALJ concluded that Plaintiff's RFC precluded performance of Plaintiff's past relevant work. Id.

         At step five, the ALJ considered Plaintiff's RFC, age, education, work experience, and the VE's testimony to determine that jobs exist in significant numbers in the national economy that Plaintiff could perform. AR 28-29. These jobs included work as a cashier, housekeeper, and small products assembler. AR 29. The ALJ also asked the VE what jobs would be available if someone with Plaintiff's characteristics were limited to sedentary work, rather than light work; the VE testified that work would be available as a charge account clerk, document preparer, and final assembler. Id. Accordingly, the ALJ found that Plaintiff has not been disabled as that term is defined under the Social Security Act since November 4, 2011, the date of her application. Id.

         DISCUSSION

         Plaintiff contends that the ALJ erred in the following general ...


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