United States District Court, D. Oregon
OPINION AND ORDER
A. RUSSO, U.S. MAGISTRATE JUDGE
Johnny K. seeks judicial review of the Social Security
Commissioner's final decision denying his applications
for disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act.
Plaintiff argues the Administrative Law Judge (ALJ) erred in
(1) failing to explain why he did not consider
plaintiff's borderline age situation when plaintiff
turned 55 years old less than three months after the
decision; (2) rejecting plaintiff's testimony without
providing clear and convincing reasons for doing so; and (3)
failing to develop the record fully and fairly. I reverse the
Commissioner's decision finding plaintiff not disabled,
and remand for (1) an immediate award of benefits starting
January 4, 2017; and (2) further proceedings on an open
record to determine whether plaintiff was disabled before
January 4, 2017.
applied for disability insurance benefits and supplemental
security income in December 2013, alleging disability
beginning in June 2010. Tr. 22. His applications were denied
initially and on reconsideration.
September 2016, plaintiff received a hearing before an ALJ.
Tr. 44-100. In January 2017, the ALJ issued his decision
finding plaintiff not disabled. Tr. 22-32. In May 2017, the
Appeals Council denied plaintiff's request for review,
making the ALJ's decision the final decision of the
Commissioner. Plaintiff now seeks judicial review.
establish disability, a claimant must demonstrate an
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected . . . to last for a
continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). The Commissioner uses the
familiar five-step sequential process to determine whether a
claimant has established disability. See Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). In the first four
steps of the process, the claimant has the burden of proof,
and at the fifth step the burden shifts to the Commissioner.
See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
first step of the sequential process, the ALJ found that
plaintiff had not engaged in substantial gainful employment
since June 10, 2010, the date of alleged onset of disability.
Tr. 24. Plaintiff met the insured status requirements through
December 31, 2011.
second step, the ALJ considered the severity of
plaintiff's physical and mental impairments. See
Yuckert, 482 U.S. at 140-41. An impairment is
“severe” if it significantly limits the
claimant's ability to perform basic work activities and
is expected to persist for twelve months or longer. See
id., 482 U.S. at 141. Here, the ALJ found that plaintiff
had the severe impairments of degenerative joint disease of
the cervical and lumbar spines; right shoulder AC joint and
sternoclavicular arthritis; partial right rotator cuff tear
with bicep tendinitis; right elbow arthritis; and headaches.
Tr. 24. The ALJ also found that the medical evidence showed
“a possible cognitive disorder with reported subjective
impairment and decline in cognitive function, a mild
depressive disorder due to another medical condition with
depressive features, and somatic disorder with predominant
pain.” Tr. 25. The ALJ found, however, that
“these mental disorders do not cause more than minimal
limitation in the claimant's ability to perform basic
mental work activities and are therefore non-severe.”
third step, the ALJ determined plaintiff's impairments
did not meet or equal any listed impairments that would
preclude substantial gainful activity. Tr. 26-27. The ALJ
then assessed plaintiff's residual functional capacity
(RFC). The RFC is the Commissioner's estimate of a
claimant's ability to perform sustained, work-related
physical and mental activities on a regular and continuing
basis, despite the limitations imposed by the claimant's
impairments. See 20 C.F.R. § 404.1545(a). The
ALJ found that plaintiff had the RFC to perform light work,
with the additional limitations that he could lift twenty
pounds occasionally and ten pounds frequently; could sit,
stand, and walk for six hours each during an eight-hour day;
could frequently kneel, crouch, and crawl; could push or pull
occasionally with his right upper arm because of mild elbow
spurring; must avoid concentrated exposure to vibrations; and
could perform only unskilled work tasks because of his
progressive memory loss. Tr. 27. The ALJ further found that
beginning December 17, 2013, plaintiff “required an
option to sit 15 minutes after standing 15 minutes, ”
and therefore needed “a sit/stand option with maximum
standing or walking in 15 minute increments.” Tr. 27.
fourth step, the ALJ, with the assistance of a vocational
expert who testified at the hearing, considered whether a
hypothetical person with plaintiff's RFC could perform
plaintiff's past relevant work. See Yuckert, 482
U.S. at 141. Plaintiff's past relevant work included a
facilities maintenance engineer, which is classified as a
semi-skilled, medium-level job, although plaintiff performed
it as a heavy-level job; aircraft prep painter, which is
classified as a semiskilled, light-level job, although
plaintiff performed it as a medium-level job; or
equipment-ammunition laborer, an unskilled medium-level job.
Tr. 31. The vocational expert testified that a person with
plaintiff's RFC could not perform his past relevant work.
fifth step, the ALJ determined whether plaintiff, despite his
impairments, could perform any jobs that exist in significant
numbers in the national economy. See Yuckert, 482
U.S. at 142. After considering the vocational expert's
testimony on available occupations for a person with
plaintiff's RFC, the ALJ found that plaintiff could work
as a mail sorter; a storage facility rental
clerk; and price marker, which are all light,
unskilled jobs. The ALJ therefore found plaintiff not
disabled through January 4, 2017, the date of the decision.
court must affirm the Commissioner's decision if the
decision is based on proper legal standards and the findings
of fact are supported by substantial evidence in the record
as a whole. 42 U.S.C. § 405(g); Batson v.
Comm'r., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence” means “more than a
mere scintilla but less than a preponderance.”
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
Cir.1995). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. If the evidence is
susceptible of more than one rational interpretation, the
court must uphold Commissioner's conclusion. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The ALJ's Failure to Adequately Consider Plaintiff's