United States District Court, D. Oregon
OPINION & ORDER
Alken United States District Judge
Nicole L. seeks judicial review of the final decision of the
Commissioner of Social Security ("Commissioner").
For the reasons set forth below, the decision of the
Commissioner is REVERSED and REMANDED for immediate award of
filed a Title II application for a period of disability and
disability insurance benefits on May 20, 2011, alleging
disability beginning May 25, 2003. Tr. 16, 193. The
application was denied initially and on reconsideration and a
hearing was held by video conference at Plaintiffs request on
December 12, 2013, Tr, 193. On January 17, 2014, the ALJ
issued a decision finding that Plaintiff was capable of
performing her past relevant work as a children's tutor
and determining that Plaintiff was not disabled from the
alleged onset date through March 31, 2007, which was
Plaintiffs date last insured. Tr. 203-04.
sought review by the Appeals Council, which reversed and
remanded the unfavorable decision. Tr. 208-11. In its ruling,
the Appeals Council held that Plaintiff could not perform her
past relevant work as a children's tutor with the
limitations described in her residual functional capacity
("RFC"). On remand, the Appeals Council instructed
the ALJ to: (1) further evaluate Plaintiffs mental
impairments in accordance with the special techniques
described in the regulations; (2) give further consideration
to Plaintiffs maximum residual functional capacity and
provide rationale with specific references to the evidence
supporting the assessed limitations; (3) further evaluate
Plaintiffs ability to perform past relevant work at Step 4 of
the sequential evaluation and make appropriate findings; and
(4) if necessary by the expanded record, obtain additional
vocational expert testimony. Tr. 15, 209-10.
remand from the Appeals Council, a second video conference
hearing was held on November 9, 2015. Tr. 15. On May 18,
2016, the ALJ issued a decision finding that Plaintiff was
not disabled between the alleged onset date and her date last
insured. Tr. 28. The Appeals Council declined review, making
the ALJ's decision the final decision of the
Commissioner. Tr. 1. This appeal followed.
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, 648 F.3d
721, 724 (9th Cir. 2011).
The five-steps are: (1) Is the claimant presently working in
a substantially gainful activity? (2) Is the claimant's
impairment severe? (3) Does the impairment meet or equal one
of a list of specific impairments described in the
regulations? (4) Is the claimant able to perform any work
that he or she has done in the past? and (5) Are there
significant numbers of jobs in the national economy that the
claimant can perform?
Id. at 724-25; see also Bustamante v.
Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Bustamante, 262 F.3d at 953. The Commissioner bears
the burden of proof at step five. Id. at 953-54. 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." Tackett v. Apfel, 180
F.3d 1094, 1100 (9th Cir. 1999). If the Commissioner fails to
meet this burden, the claimant is disabled. 20 C.F.R.
§§ 4O4.l52O(a)(4)(v); 4l6.92O(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.
performed the sequential analysis. As previously noted,
Plaintiffs date last insured was March 31, 2007. Tr, 17, At
step one, the ALJ found Plaintiff had not engaged in
substantial gainful activity since the alleged onset date
through the date last insured. Id. The ALJ
determined Plaintiff had the following severe impairments:
post-traumatic stress disorder ("PTSD"),
depression, lumbar spine chronic compression deformity, and
asthma. Id. The ALJ determined Plaintiffs
impairments did not meet or equal a listed impairment. Tr.
determined Plaintiff had the RFC to perform light work with
the following additional limitations: she can sit, stand, or
walk for six hours in an eight-hour workday; she can
occasionally climb stairs, ramps, ladders, ropes, and
scaffolds; she can occasionally balance, stoop, kneel, crouch
and crawl; she must avoid concentrated exposure to lung
irritants including fumes, odors, dust, gases, and poor
ventilation; she can have occasional contact with co-workers
and supervisors, but no interaction with the general public;
she "should not work in an environment with the proper
major changes at work, but is capable of tolerating normal
and forewarn predictable changes [sic];" and "she
requires a low stress job with few changes in work setting or
work processes, no persuasive communication tasks, and no
fast-paced production pace tasks." Tr. 20.
noted Plaintiff was 31 years old on her date last insured and
has at least a high school education and is able to
communicate in English. Tr. 26. The ALJ found Plaintiff was
unable to perform any of her past relevant work. Id.
Based on her RFC, the ALJ determined Plaintiff was able to
perform work as an electronic worker, electronics assembler,
and mail clerk. Tr. 27. As a consequence, the ALJ determined
Plaintiff was not disabled during the period between her
alleged onset date and her date last insured. Tr. 27-28.
district court must affirm the Commissioner's decision if
the decision is based on proper legal standards and the legal
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm % 359 F.3d
1190, 1193 (9th Cir. 2004). Substantial evidence "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) (citation and internal
quotation marks omitted). In reviewing the Commissioner's
alleged errors, this 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). Variable interpretations of the evidence
are insignificant if the Commissioner's interpretation is
rational. Burch v. Bamhart, 400 F.3d 676, 679 (9th
the evidence before the ALJ is subject to more than one
rational interpretation, courts must defer to the ALJ's
conclusion. Batson, 359 F.3d at 1198 (citing
Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.
1995)). A reviewing court, however, cannot affirm the
Commissioner's decision on a ground that the agency did
not invoke in making its decision, Stout v. Comm
>, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court
may not reverse an ALJ's decision on account of an error
that is harmless. Id. at 1055-56. "[T]he burden
of showing that an error is harmful normally falls upon the
party attacking the agency's determination."
Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
alleges the ALJ erred by (1) failing to find Plaintiffs
migraines to be a severe impairment and incoiporating those
limitations into Plaintiffs RFC; (2) improperly weighing the
medical opinion evidence of Plaintiff s examining
psychiatrist; (3) improperly rejecting Plaintiffs subjective
symptom testimony; (4) improperly rejecting lay witness
testimony; and (5) failing to include all of Plaintiff s
limitations in the hypothetical question to the vocational