United States District Court, D. Oregon, Pendleton Division
OPINION AND ORDER
Aiken United States District Judge
Ginny L. brings this action pursuant to the Social Security
Act ("Act"), 42 U.S, C. § 405(g), to obtain
judicial review of a final decision of the Commissioner of
Social Security ("Commissioner"). The Commissioner
denied Plaintiffs application for Supplemental Security
Income ("SSI") and Disability Insurance Benefits
("DIB"). For the reasons set forth below, the
Commissioner's decision is AFFIRMED.
24, 2013, plaintiff filed for DIB with a date last insured of
December 31, 2017. On December 23, 2013, plaintiff filed an
application for SSL In her applications, plaintiff alleged
disability beginning on July 3, 2012 due to a combination of
physical and mental impairments, including depression,
anxiety, PTSD, chronic pain, fibromyalgia, and spinal
claims were denied initially on March 5, 2014 and upon
reconsideration on August 1, 2014. On August, 122014,
plaintiff filed a written request for hearing before an
Administrative Law Judge ("ALJ"). An administrative
hearing was held on May 31, 2016, where plaintiff was
represented by counsel. Plaintiff and a vocational expert
("VE") offered testimony. The ALJ found plaintiff
not disabled in a written decision issued on January 30,
2017. After the Appeals Council denied review, plaintiff
filed the present complaint in this Court.
district court must affirm the ALJ's decision unless it
contains legal error or is not supported by substantial
evidence." Garrison v. Colvin, 759 F.3d 995,
1009 (9th Cir. 2014) (citing Stout v. Comm'r, Soc.
Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)).
Harmless legal errors are not grounds for reversal. Stout
v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054
(9th Cir. 2006) (citing Burch v. Barnhart, 400 F.3d
676, 679 (9th Cir. 2005)). "Substantial evidence is 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." Gutierrez v.
Comm'r of Soc. Sec, 740 F.3d 519, 522 (9th Cir.
2014) (citation and internal quotation marks omitted). The
court must evaluate the complete record and weigh "both
the evidence that supports and the evidence that detracts
from the ALJ's conclusion." Mayes v.
Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the
evidence is subject to more than one inteipretation but the
Commissioner's decision is rational, the Commissioner
must be affirmed, because "the court may not substitute
its judgment for that of the Commissioner." Edhind
v. Massanari, 253 F.3d 1152, 1156 (9th Cir, 2001).
initial burden of proof rests upon the plaintiff to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden. The plaintiff 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 sequential process
for determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
404.1520(a)(4); id. § 416.920(a)(4). At step
one, the ALJ found that plaintiff had not engaged in
"substantial gainful activity" since the alleged
onset date of July 3, 2012. Tr. 19. 20 C.F.R. §§
404.1520(a)(4)(i), (b); id. §§
416.920(a)(4)(i), (b). At step two, the ALJ found that
plaintiff had severe impairments of "fibromyalgia,
degenerative disc disease, depressive disorder, and anxiety
disorder." Tr. 19. 20 C.F.R. §§
404.1520(a)(4)(ii), (c); id. §§
416.920(a)(4)(ii). At step three, the ALJ determined
plaintiffs impairments, whether considered singly or in
combination, did not meet or equal "one of the listed
impairments" that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. Tr. 20.
20 C.F.R. §§ 404.1520(a)(4)(iii), (d); id.
§§ 416.920(a)(4)(iii), (d).
then assessed plaintiffs residual functional capacity
("RFC"). 20 C.F.R. § 404.1520(e); id.
§ 416.920(e). The ALJ found that plaintiff
has the [RFC] to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except she can occasionally
balance, stoop, kneel, crouch, crawl, and climb ramps,
stairs, ladders, ropes, and scaffolds. She can perform simple
routine tasks, in a routine work environment with only
superficial interaction with coworkers and the public.
Tr. 23. At step four, the ALJ found that plaintiff was
"capable of performing past relevant work as a cashier
IF' and thus was not disabled under the Act. Tr. 32 As an
alternative finding, the ALJ proceeded to step five and
determined plaintiff could perform other jobs existing in
significant numbers in the national economy such as cleaner
(DOT# 323.687-014), assembler (DOT# 706.687-010),
packing-line worker (DOT #753.687-038). Tr. 34. 20 C.F.R.
§§404.1520(a)(4)(v), (g)(1). Accordingly, the ALJ
found that plaintiff was not disabled and denied her
application for benefits. Id.
raises five assignments of error on appeal. She contends that
the Commissioner erred in: (1) failing to properly credit
certain medical opinion evidence; (2) improperly rejecting
some of plaintiff s impairments as non-severe at step two,
(3) improperly evaluating lay witness statements, (3)
improperly evaluating plaintiffs subjective symptom
testimony, and (5) failing to conduct adequate analysis and
Steps Four and Five. The Court addresses each issue in turn.
Medical Opinion Testimony
first argues that the ALJ improperly rejected the opinions of
(1) Rodrigo Lim, MD, plaintiffs treating physician, (2)
examining physician Kenneth Dudley, Ph.D, (3) State
Disability Determination Services ("DDS")
consultants Richard Alley, ...