United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
PATRICIA SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
Melissa T. brings this action pursuant to the Social Security
Act (the “Act”), 42 U.S.C. § 405(g), to
obtain judicial review of a final decision of the
Commissioner of Social Security (the
“Commissioner”). The Commissioner denied
plaintiff Supplemental Security Income (“SSI”)
under Title XVI of the Act. 42 U.S.C. § 1381 et
seq. For the following reasons, the Court REVERSES and
REMANDS the Commissioner's decision for further
protectively filed for SSI on January 9, 2014, alleging a
disability onset date of August 1, 2011. Tr.
390-97. Her claim was denied initially on May 7,
2014, and upon reconsideration on July 18, 2014. Tr. 301-30.
On September 24, 2014, plaintiff requested a hearing, which
was held by video on July 6, 2016, before Administrative Law
Judge (“ALJ”) Katherine Weatherly. Tr. 284-300,
344-47. Plaintiff appeared and testified at the hearing,
represented by counsel; a vocational expert
(“VE”), Francene Geers, also testified.
Id. On August 22, 2016, the ALJ issued a decision
finding plaintiff not disabled under the Act and denying
benefits. Tr. 256-72. Plaintiff requested Appeals Council
review, which was denied December 7, 2017. Tr. 1-6. Plaintiff
then sought review before this Court.
was born in 1982. Tr. 390. She experiences depression with
agoraphobia, panic disorder, posttraumatic stress disorder,
conversion disorder, fibromyalgia, Sjogren's syndrome,
periodic limb movement disorder, ocular migraines, bilateral
patellar subluxation, and interstitial cystitis. Tr. 61, 111,
127, 519, 533, 631, 808, 815, 905, 924. She has a daughter,
and they live with plaintiff's mother. Tr. 287. Plaintiff
completed high school through a correspondence course. Tr.
288. Plaintiff has no work history. Tr. 294.
court must affirm the Commissioner's decision if it is
based on proper legal standards and the findings are
supported by substantial evidence in the record. Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial
evidence is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotation omitted).
The court must weigh “both the evidence that supports
and detracts from the [Commissioner's] conclusion.”
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.
1986). “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.” Massachi v.
Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
omitted); see also Burch v. Barnhart, 400 F.3d 676,
680-81 (9th Cir. 2005) (holding that the court “must
uphold the ALJ's decision where the evidence is
susceptible to more than one rational interpretation”).
“[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) (quotation
initial burden of proof rests upon the claimant to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the 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).
Commissioner has established a five-step process for
determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
§§ 404.1520, 416.920. First, the Commissioner
determines whether a claimant is engaged in
“substantial gainful activity”; if so, the
claimant is not disabled. Yuckert, 482 U.S. at 140;
20 C.F.R. §§ 404.1520(b), 416.920(b). At 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). A severe
impairment is one “which significantly limits [the
claimant's] physical or mental ability to do basic work
activities[.]” 20 C.F.R. §§ 404.1520(c) &
416.920(c). If not, the claimant is not disabled.
Yuckert, 482 U.S. at 141. At step three, the
Commissioner determines whether the impairments meet or equal
“one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity.” Id.; 20 C.F.R.
§§ 404.1520(d), 416.920(d). If so, the claimant is
conclusively presumed disabled; if not, the analysis
proceeds. Yuckert, 482 U.S. at 141.
point, the Commissioner must evaluate medical and other
relevant evidence to determine the claimant's
“residual functional capacity”
(“RFC”), an assessment of work-related activities
that the claimant may still perform on a regular and
continuing basis, despite any limitations his impairments
impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c),
416.920(e), 416.945(b)-(c). At the fourth step, the
Commissioner determines whether the claimant can perform
“past relevant work.” Yuckert, 482 U.S.
at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If
the claimant can work, he is not disabled; if he cannot
perform past relevant work, the burden shifts to the
Commissioner. Yuckert, 482 U.S. at 146 n.5. At step
five, the Commissioner must establish that the claimant can
perform other work that exists in significant numbers in the
national economy. Id. at 142; 20 C.F.R. §§
404.1520(e) & (f), 416.920(e) & (f). If the
Commissioner meets this burden, the claimant is not disabled.
20 C.F.R. §§ 404.1566, 416.966.
one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since the application date. Tr.
261. At step two, the ALJ found that plaintiff had these
severe impairments: fibromyalgia, Sjogren's syndrome,
mild periodic limb movement disorder, ocular migraines,
bilateral patellar subluxation, interstitial cystitis,
conversion disorder, dysthymia, and panic disorder.
Id. At step three, the ALJ found that plaintiff did
not have an impairment or combination thereof that met or
equaled a listed impairment. Tr. 262. The ALJ considered,
inter alia, Listings 12.04 (Affective Disorders) and
12.06 (Anxiety-Related Disorders). The ALJ then found that
plaintiff had the RFC to perform sedentary work, with certain
physical, cognitive, and social restrictions. Tr. 264. In
making this determination, the ALJ gave “no
weight” to the opinions of Heather Holmes, M.D.,
plaintiff's treating primary care physician; Laura
Schaben, M.D., plaintiff's treating neurologist; and
William Herz, M.D., plaintiff's treating psychiatrist;
and gave “limited weight” to the opinions of
consultative examining neuropsychologist William Trueblood,
Ph.D. Tr. 268-69. The ALJ also found plaintiff's symptom
testimony “not entirely consistent” with the
medical evidence and other evidence of record. Tr. 265. At
step four, the ALJ found that plaintiff had no past relevant
work. Tr. 271. At step five, the ALJ found that plaintiff
could adjust to jobs that exist in significant numbers in the
national economy, including board assembler, addresser, and
patcher. Tr. 271-72. The ALJ thus found plaintiff not
disabled under the Act and not entitled to benefits. Tr. 272.
argues that the ALJ erred in four ways: (1) failing to find
that plaintiff met the listed impairments for Listings 12.04
and 12.06; (2) improperly rejecting the medical
opinions of Drs. Holmes, Schaben, Trueblood, and Herz; (3)
improperly discounting plaintiff's testimony; and (4)
failing to include all of plaintiff's limitations in the
RFC and VE hypothetical questions. The Court finds that the
ALJ erred in each of these regards.
Step Three Listings
three, the ALJ found that plaintiff did not satisfy certain
disability listing criteria, including Listing 12.04
(Affective Disorders) and 12.06 (Anxiety-Related Disorders).
The ALJ found that plaintiff did not meet the listings'
“paragraph B” criteria because she had only mild
or moderate restrictions, and no extended episodes of
decompensation. Tr. 262-63. The ALJ found that plaintiff also
did not meet the listings' “paragraph C”
criteria. Tr. 263-64. Plaintiff argues that the ALJ's
findings entail that she meets the listings' paragraph A
criteria, and that Dr. Trueblood and Herz' assessments
entail that she meets the listings' paragraph B criteria.
meet a listed impairment, a claimant must establish that he
or she meets each characteristic of a listed impairment
relevant to his or her claim.” Tackett v.
Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (italics
omitted). For a claimant to show that his impairment matches
a listing, it must meet all of the specified medical
criteria; an impairment that manifests only some of those
criteria, no matter how severely, does not qualify.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990)
(footnotes and citations omitted), superseded by statute
on other grounds as stated in Kennedy v. Colvin, 738
F.3d 1172, 1174 (9th Cir. 2013)
For a claimant to qualify for benefits by showing that his
unlisted impairment, or combination of impairments, is
“equivalent” to a listed impairment, he must
present medical findings equal in severity to all the
criteria for the one most similar listed impairment.
Sullivan, 493 U.S. at 530-31. A determination of
medical equivalence must rest on objective medical evidence.
See Lewis v. Apfel, 236 F.3d 503, 513-14 (9th Cir.
2001); Tackett v. Apfel, 180 F.3d 1094, 1100 (9th
Cir. 1999) (“Medical equivalence must be based on
medical findings. A generalized assertion of functional
problems is not enough to establish disability at step
three.” (quotation omitted)); 20 C.F.R. §
404.1529(d)(3) (“In considering whether your symptoms,
signs, and laboratory findings are medically equal to . . . a
listed impairment, we will look to see whether your symptoms,
signs, and laboratory findings are at least equal in severity
to the listed criteria. However, we will not substitute your
allegations of pain or other symptoms for a missing or
deficient sign or laboratory finding to raise the severity of
your impairment(s) to that of a listed impairment.”).
“The mere diagnosis of an impairment listed in Appendix
1 is not sufficient to sustain a finding of
disability.” Key v. Heckler, 754 F.2d 1545,
1549 (9th Cir. 1985). Instead, all the specified medical
criteria must be met or equaled. Id. at 1550.
argument as to why she meets Listings 12.04 and
12.06 rely on Dr. Trueblood and Herz'
opinions. Plaintiff argues that Dr. Trueblood's December
6, 2012, Mental Residual Function Capacity Report assessed
marked limitations in the first two paragraph B criteria,
activities of daily living and social functioning, Tr. 635;
and that Dr. Herz' May 28, 2014, Medical Source Statement
assessed marked limitations in the second and third paragraph
B criteria, social functioning, and concentration,
persistence, or pace, Tr. 853-854. Plaintiff argues that
because the Court should credit these opinions as true, the
Court should find that plaintiff meets the listings. As
discussed below, the ALJ erred in assessing Drs.
Trueblood's and Herz' opinions. The ALJ must thus
reassess on remand whether plaintiff fulfills the criteria of
Listings 12.04 and 12.06. See, e.g., Tammy L.O.
v. Commissioner, No. 3:17-cv-774-SI, 2018 WL 3090196, at
*15 (D. Or. June 20, 2018). Nonetheless, as discussed below,
it would not be proper for the Court to credit as true those
physicians' opinions at this stage of review, and so it
cannot be determined as a matter of law at this stage that
plaintiff meets these listings.
erred her step three findings, and must reconsider whether
plaintiff meets Listings 12.04 and 12.06 after reassessing