United States District Court, D. Oregon
OPINION AND ORDER
AIKEN UNITED STATES DISTRICT JUDGE
Kittie H. seeks judicial review of the final decision of the
Commissioner of Social Security ("Commissioner")
denying disability insurance benefits ("DIB")
pursuant to Title II of the Social Security Act. For the
reasons set forth below, the Commissioner's decision is
REVERSED and REMANDED for further proceedings.
protectively filed an application for DIB on July 29, 2013.
She alleged disability beginning October 28, 2010, due to
degenerative neck disease, arthritis, past knee surgeries,
high cholesterol, migraines, depression, panic attacks, and
anxiety. Her application was denied initially and upon
review. Plaintiff appeared before an Administrative Law Judge
("ALJ") at a hearing held October 30, 2015. She was
represented by an attorney. A vocational expert
("VE") also appeared and testified at the hearing.
On February 25, 2016, the ALJ issued a decision finding
Plaintiff not disabled through December 15, 2015, the date
last insured. On July 12, 2017, the Appeals Council denied
plaintiffs request for review, making the ALJ's decision
the final decision of the Commissioner. This appeal followed.
district court must affirm the Commissioner's decision if
it is based upon proper legal standards and the findings are
supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Berry v. Astrue, 622 F.3d 1228, 1231
(9th Cir. 2010). "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 quotation marks omitted). The court must
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 interpretation 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." Edlund
v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
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 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). At step one, the ALJ found that plaintiff had
not engaged in "substantial gainful activity"
during the period from her alleged onset date of October 28,
2010 through her date last insured of December 31, 2015. Tr.
22; 20 C.F.R. §§ 404.1520(a)(4)(i), (b);
id. at § 404.1571. At step two, the ALJ found
that plaintiff suffers from the following severe impairments:
"spine disorder and migraines." Tr. 22-24; 20
C.F.R. §§ 404.1520(a)(4)(ii), (c). At step three,
the ALJ determined that 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. 24; 20 C.F.R. §§
404.1520(a)(4)(iii), (d); id. § 404.1525;
id. § 404.1526.
then assessed plaintiffs residual functional capacity
("RFC"). 20 C.F.R. § 404.1520(e). The ALJ
found that plaintiff retained the RFC to
perform light work as defined in 20 C.F.R. § 404.1567(b)
except the [plaintiff] is limited to frequent climbing of
stairs, ramps, ladders, ropes, and scaffolds. [Plaintiff) is
limited to occasional overhead reaching bilaterally.
[Plaintiff] is limited to occasional exposure to extreme
heat, extreme cold, vibrations, and moderate noise.
four, the ALJ concluded plaintiff could perform her past
relevant work as a server. Tr. 28; 20 C.F.R. §§
4O4.1520(a)(4)(iv), (f), (h); id. at §
404.1565. Accordingly, the ALJ found plaintiff was not
disabled during the relevant period and denied her
initial matter, the Commissioner concedes that the ALJ
committed error at step four and that the case should be
four, the ALJ determined that plaintiff was capable of
performing her past relevant work as a server. Tr. 28. In
making her determination, the ALJ noted that the VE testified
that plaintiff "would have been able to perform this job
as generally performed in the Dictionary of Occupational
Titles" ("DOT'). Id. The ALJ adopted
the VE's testimony because the ALJ found that it was
consistent with the information in the DOT and plaintiffs
parties agree that this was error because the hypotheticals
that the ALJ posed to the VE at the hearing were incomplete.
The RFC limits plaintiff to "occasional exposure to .. .
moderate noise," Tr. 24, but the ALJ asked the VE
whether a person "limited to noise at a moderate
level" could perform work as a server without specifying
the duration of that exposure. Tr. 60. The VE responded that
the person would be able to work as a server, as the DOT
provides that work as server requires exposure to a moderate
level of noise. Id.; see also DOT 311.477-030.
the hypothetical does not reflect all of the claimant's
limitations, we have held that the expert's testimony has
no evidentiary value to support a finding that the claimant
can perform jobs in the national economy." DeLorme
v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). Thus,
the ALJ's step four determination was not based on
substantial evidence. Id.
parties dispute whether further proceedings are required, or
whether the case ought to be remanded for an immediate award
also alleged that the ALJ erred in (1) determining that other
impairments alleged by plaintiff were either not medically
determinable or not severe; (2) finding that plaintiff did
not have an impairment or combination of impairments that met
or medically equaled the severity of Listing 1.04A in 20
C.F.R. Part 404, Subpart P, Appendix 1; (3) finding that
plaintiffs testimony was partially credible; (4) rejecting
testimony of plaintiffs ex-husband and (5) rejecting certain
medical opinions. Thus, before determining what type of
remand is appropriate, I address each additional assignment
of error in turn.
argues that the ALJ erred by determining that certain
impairments that she alleged were either not medically
determinable or not severe. Plaintiff asserts that, in
addition to spinal disorder and migraines, the ALJ should
have found that she had the following severe impairments:
depression and anxiety, degenerative joint disease of the
left shoulder, degenerative joint disease of bilateral knees,
hyperlipidemia, and left hip bursitis.
two, a claimant must make a threshold showing that he or she
has medically determinable impairments that significantly
limit his or her ability to perform basic work activities.
See Bowen, 482 U.S. at 145; 20 C.F.R. §
404.1520(c). "[T]he step two inquiry is a de
minimis screening device to dispose ...