United States District Court, D. Oregon
Merrill Schneider, Schneider, Kerr, & Robichaux, P.O. Box
14490, Portland, OR 97293. Of Attorneys for Plaintiff.
J. Williams, United States Attorney, and Renata Gowie,
Assistant United States Attorney, United States
Attorney's Office, 1000 S.W. Third Avenue, Suite 600,
Portland, OR 97204; Jordan D. Goddard, Special Assistant
United States Attorney, Office of General Counsel, Social
Security Administration, 701 Fifth Avenue, Suite 2900 M/S
221A, Seattle, WA 98104. Of Attorneys for Defendant.
MICHAEL H. SIMON, DISTRICT JUDGE.
F. (“Plaintiff”) seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying her
application for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(the “Act”). 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
filed an application for DIB on March 19, 2014, alleging she
became disabled on August 1, 2013. AR 61. Born in 1969,
Plaintiff was 43 years old at the alleged disability onset
date and 46 years old at the time of her hearing. AR 72, 127.
She completed high school and attended some college courses,
but she did not obtain a college degree. AR 19. Plaintiff had
past relevant work experience as a retail sales associate and
assistant manager. AR 31-32. She alleged disability due
fibromyalgia, migraines, and “menstrual issues.”
Commissioner denied Plaintiff's application initially and
upon reconsideration, and Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”). AR
80-90, 97-98. On April 28, 2016, a hearing was held before
ALJ S. Andrew Grace, at which Plaintiff, her counsel, and
Paul Morrison, a vocational expert (“VE”), were
present. AR 15-36. In a decision dated August 11, 2016, the
ALJ found Plaintiff not disabled. AR 61-73. The Appeals
Council denied Plaintiff's request for review on October
20, 2017, making the ALJ's decision the final decision of
the Commissioner. AR 1-4; see also 20 C.F.R. §
422.210(a). Plaintiff seeks judicial review of that decision.
This Court has jurisdiction pursuant to 42 U.S.C. §
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 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
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 ALJ's Decision
performed the sequential analysis noted above. At step one,
the ALJ found that Plaintiff had not engaged in substantial
gainful activity since August 1, 2013, the alleged disability
onset date. AR 63. At step two, the ALJ found that Plaintiff
had the following severe impairments: fibromyalgia,
migraines, obesity, anemia, diabetes mellitus, anxiety, and
depression. Id. The ALJ further found that
Plaintiff's hypertension, incontinence, obstructive sleep
apnea, hidradenitis, hand tremors, and temporomandibular
joint disorder (“TMJ”) were non-severe. AR 63-64.
At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or equaled
the severity of one of the specific impairments listed in the
regulations. AR 64-66.
next determined Plaintiff's RFC and found that she could
perform sedentary work, with the following limitations:
She can never climb ladders, ropes or scaffolds. She can
occasionally climb ramps and stairs. She can occasionally
balance, stoop, kneel, crouch and crawl. She is limited to
simple, routine and repetitive tasks consistent with
unskilled work. She is limited to low-stress work, which is
defined as work requiring few decisions and few changes.
AR 66. At step four, the ALJ found that Plaintiff was unable
to perform any of her past relevant work. AR 71-72.
five, the ALJ found that considering Plaintiff's age,
education, work experience, and RFC there were jobs that
existed in significant numbers in the national economy that
Plaintiff could perform. AR 72. Specifically, the ALJ found
that Plaintiff could perform such representative occupations
as charge account clerk, addresser, and telephone quotation
clerk. Id. Accordingly, the ALJ found that Plaintiff
was not disabled from August 1, 2013, through the date of the
decision, August 11, 2016. AR 73.
argues that the ALJ erred by: (A) failing to find several of
Plaintiff's diagnoses severe impairments at step two; (B)
finding Plaintiff's subjective symptom testimony less
than entirely credible; (C) discounting the opinions of
Plaintiff's treating doctor Linda Hungerford, MD, and
mental health counselor Catherine Caruso, MSW, CSWA; (D)
improperly evaluating the lay witness testimony of
Plaintiff's mother, Leslie M.; and (E) finding that
Plaintiff was capable of performing other work in the
national economy at step five. Each is discussed in turn.
two, the claimant bears the burden of establishing that she
has a severe impairment by providing medical evidence. 20
C.F.R. §§ 404.1512, 416.912. An impairment or
combination of impairments is “not severe only
if the evidence establishes a slight abnormality that
has no more than a minimal effect on an individual's
ability to work.” Webb v. Barnhart, 433 F.3d
683, 686 (9th Cir. 2005) (emphasis in original) (citation
omitted). The ALJ is required to consider the combined effect
of all the claimant's impairments on her ability to
function. Howard ex rel. Wolff v. Barnhart, 341 F.3d
1006, 1012 (9th Cir. 2003). Thus, if the ALJ determines that
a claimant has any severe impairment at step two, the
sequential analysis proceeds and the ALJ must continue to
consider all of the claimant's limitations, severe or
not. Social Security Rule (“SSR”) 96-8p,
available at 1996 WL 374184; Buck v.
Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). When an
ALJ fails to identify a severe impairment at step two, but
nonetheless considers at subsequent steps all of the
claimant's impairments, including the erroneously omitted
severe impairment, the error at step two is harmless. See
Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
argues that the ALJ improperly failed to find the following
diagnoses were severe impairments: diabetic neuropathy, sleep
apnea, hypertension, TMJ, hidradenitis, respiratory issues,
incontinence, and hand tremors. With the exception of
Plaintiff's respiratory issues and diabetic neuropathy,
the ALJ expressly found those impairments were not severe at
step two because they caused no more than a minimal effect on
Plaintiff's ability to perform basic work activities. AR
63-64. Plaintiff's conclusory assertions to the contrary
simply pointing to a host of diagnoses scattered throughout
the medical record, Plaintiff does not advance a single
functional limitation that the ALJ failed to consider in the
sequential analysis. A diagnosis alone does not establish the
severity of an impairment. See Key v. Heckler, 754
F.2d 1545, 1549-50 (9th Cir. 1985). Moreover, the ALJ
considered all of Plaintiff's impairments at the
subsequent steps of the sequential analysis and in his
summary of the medical evidence. AR 64-70. Thus, even
assuming the ALJ erred at step two, that error would have
been harmless. Lewis, ...