United States District Court, D. Oregon, Portland Division
R. J. Porter JP LAW PC Attorney for Plaintiff
J. Williams Sarah L. Martin Attorneys for Defendant
OPINION & ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE.
Florina P. brings this action seeking judicial review of the
Commissioner's final decision to deny disability
insurance benefits (DIB) and supplemental security income
(SSI) before July 26, 2016. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g) (incorporated by 42
U.S.C. § 1383(c)(3)). I reverse the Commissioner's
decision and remand the case for additional proceedings.
applied for DIB and SSI on February 14, 2014, alleging an
onset date of May 20, 2007. Tr. 81-86. Her applications were
denied initially and on reconsideration. Tr. 69-80, 126-30
(DIB Initial); Tr. 94-109, 137-39 (DIB Recon.); Tr. 68,
81-91, 131-34 (SSI Initial); Tr. 92, 110-25, 140-42 (SSI
Recon.). On August 3, 2016, Plaintiff appeared, with counsel,
for a hearing before an Administrative Law Judge (ALJ). Tr.
43-67. On September 30, 2016, the ALJ found Plaintiff not
disabled before July 26, 2016, but disabled after that date.
Tr. 17-42. The Appeals Council denied review. Tr. 1-6.
alleges disability based on a back injury and chronic back
pain, fibromyalgia, chronic knee pain, anxiety, depression,
and panic attacks. Tr. 224. At the time of the hearing, she
was fifty years old. Tr. 48 (stating date of birth). She
completed eighth grade and half of ninth grade in Mexico. Tr.
49. Plaintiff speaks, reads, and understands very little
English. Tr. 52. She does not write in English. Tr. 52-53.
The ALJ found that Plaintiff's "main language"
is Spanish. Tr. 35. Because Plaintiff can read only very
little English and cannot write in English, the ALJ found her
to be illiterate. Tr. 35. Plaintiff has past relevant work
experience as an agricultural produce sorter, hand packager,
production helper, and harvest worker. Tr. 62-63.
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), 1382c(a)(3)(A).
claims are evaluated according to a five-step procedure.
See Valentine v. Comm'r, 574 F.3d 685, 689 (9th
Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). 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). In 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 plaintiff'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 perform past relevant work, 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. §§
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since her alleged onset date.
Tr. 23. Next, at steps two and three, the ALJ determined that
Plaintiff has severe impairments of headaches, a spine
disorder, and fibromyalgia, but that the impairments did not
meet or equal, either singly or in combination, a listed
impairment. Tr. 23-27.
four, the ALJ concluded that before July 26, 2016, Plaintiff
had the RFC to perform light work as defined in 20 C.F.R.
§§ 404.1567(b), 416.967(b), with the following
additional limitations: (1) she can occasionally climb ramps
and stairs, stoop, kneel, crouch, and crawl, but can never
climb ladders, ropes, or scaffolds; (2) she is limited to
hearing and understanding simple oral instructions and to
communicating simple information orally; and (3) she can have
no exposure to hazards such as moving mechanical parts,
unprotected heights, or operating a motor vehicle, and she
can be exposed to a loud level noise at most. Tr. 28.
However, beginning on July 26, 2016 and thereafter, the ALJ
concluded that Plaintiff had the RFC to perform sedentary
work as defined in 20 C.F.R. §§ 404.1567(a),
416.967(a), along with the same additional limitations
provided for in the pre-July 26, 2016 RFC. Tr. 33.
the pre-July 26, 2016 RFC, the ALJ determined that Plaintiff
is able to perform her past relevant work of agricultural
produce sorter. Tr. 34-35. Thus, the ALJ determined that
before that date, Plaintiff was not disabled. 36. With the
RFC applicable on July 26, 2016 and thereafter, the ALJ found
that Plaintiff is unable to perform any of her past relevant
work. Tr. 35. Continuing at step five, the ALJ determined
that under the RFC applicable on July 26, 2016 and
thereafter, there were no jobs that exist in significant
numbers that Plaintiff is able to perform and thus, she was
disabled beginning on July 26, 2016 and continuing
thereafter. Tr. 35-36.
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) (internal quotation marks omitted).
"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). The court considers 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 and brackets 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 marks
argues that the ALJ erred in her determination of
non-disability before July 26, 2016 by (1) finding her
subjective limitations testimony not credible; (2) finding
her anxiety and depression to be non-severe impairments at
step two; (3) improperly rejecting lay opinion testimony; and
(4) improperly rejecting the opinion of her treating
physicians. She also argues that the ALJ erred by failing to
"incorporate all medical findings" into the RFC and
failed to assess whether Plaintiff was capable of working on
a "regular and continuing basis." Pl.'s Brief
31, ECF 13. This last argument appears to challenge the
ALJ's RFC and adds nothing to the previous arguments
raising specific errors. Id. at 31-32. Thus, I do
not address it as a separate alleged error by the ALJ.
is responsible for determining credibility. See
Vasquez, 572 F.3d at 591. Once a claimant shows an
underlying impairment and a causal relationship between the
impairment and some level of symptoms, clear and convincing
reasons are needed to reject a claimant's testimony if
there is no evidence of malingering. Carmickle v.
Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent
affirmative evidence that the plaintiff is malingering,
"where the record includes objective medical evidence
establishing that the claimant suffers from an impairment
that could reasonably produce the symptoms of which he
complains, an adverse credibility finding must be based on
'clear and convincing reasons'"); see also
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)
(ALJ engages in two-step analysis to determine credibility:
First, the ALJ determines whether there is "objective
medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms
alleged"; and second, if the claimant has presented such
evidence, and there is no evidence of malingering, then the
ALJ must give "specific, clear and convincing reasons in
order to reject the claimant's testimony about the
severity of the symptoms.") (internal quotation marks
determining the credibility of a plaintiff's complaints
of pain or other limitations, the ALJ may properly consider
several factors, including the plaintiff's daily
activities, inconsistencies in testimony, effectiveness or
adverse side effects of any pain medication, and relevant
character evidence. Orteza v. Shalala, 50 F.3d 748,
750 (9th Cir. 1995). The ALJ may also consider the ability to
perform household chores, the lack of any side effects from
prescribed medications, and the unexplained absence of
treatment for excessive pain. Id. As the Ninth
Circuit explained in Molina:
In evaluating the claimant's testimony, the ALJ may use
ordinary techniques of credibility evaluation. For instance,
the ALJ may consider inconsistencies either in the
claimant's testimony or between the testimony and the
claimant's conduct, unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of
treatment, and whether the claimant engages in daily
activities inconsistent with the alleged symptoms[.] While a
claimant need not vegetate in a dark room in order to be
eligible for benefits, the ALJ may discredit a claimant's
testimony when the claimant reports participation in everyday
activities indicating capacities that are transferable to a
work setting[.] Even where those activities suggest some
difficulty functioning, they may be grounds for discrediting
the claimant's testimony to the extent that they
contradict claims of a totally debilitating impairment.
Molina, 674 F.3d at 1112-13 (citations and internal
quotation marks omitted).
summarized Plaintiff's subjective limitations testimony
and noted that Plaintiff's low back pain has caused pain
in her knees which limits the amount of time she can stand to
thirty minutes to an hour and the amount of time she can sit
in one position; that she has numbness in her legs; that she
has severe pain from her fibromyalgia which makes it painful
for her to work; that she forgets things because of her pain;
that she has headaches every two to three weeks which
sometimes last all day and make her dizzy and unable to walk;
that due to her sleep apnea, she feels fatigued all day; that
she does not handle stress or changes in routine well; that