United States District Court, D. Oregon, Eugene Division
FINDINGS AND RECOMMENDATION
PATRICIA SULLIVAN United States Magistrate Judge.
Robin P. 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”) denying plaintiff Disability
Insurance Benefits (“DIB”) under Title II of the
Act. 42 U.S.C. § 401 et seq. For the following
reasons, the Court should REVERSE and REMAND this action for
further administrative proceedings.
protectively filed for DIB on August 9, 2013, alleging a
disability onset date of January 1, 2012, later amended to
July 23, 2013. Tr. 75, 188-89. Her claim was denied initially on
December 13, 2103, and on reconsideration on June 20, 2014.
Tr. 124-41. On July 27, 2014, plaintiff requested a hearing,
which was held on May 17, 2016, in Eugene, Oregon, before
Administrative Law Judge (“ALJ”) John Michaelsen.
Tr. 148-49, 70-113. Plaintiff testified, represented by
counsel; a vocational expert (“VE”), Jaye Stutz,
also testified. Id. On June 10, 2016, the ALJ issued
a decision finding plaintiff not disabled under the Act and
denying benefits. Tr. 46-63. Plaintiff requested Appeals
Council review, which was denied October 19, 2017. Tr. 1-6.
Plaintiff then sought review before this Court.
was born in 1964. Tr. 75, 18. Tr. 159, 246. She has completed
high school and some college coursework. Tr. 107. Plaintiff
worked for fifteen years as a human resource assistant at a
retail store. Tr. 107-08, 319. Plaintiff has been diagnosed
with degenerative disc disease, osteoarthritis, anxiety, and
depression. Tr. 119-21, 334, 346, 349, 366, 399, 418, 477.
She lives with her partner, and she has a son who does not
live with them. Tr. 284, 401.
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 amended alleged onset
date. Tr. 51. At step two, the ALJ found that plaintiff had
the severe impairments of degenerative disc disease and
osteoarthritis. 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. 53. The
ALJ then found that plaintiff had the RFC to perform less
than sedentary work with various physical restrictions. Tr.
53. In doing so, the ALJ considered the opinions of treating
physician Peter Kosek, M.D., and took those opinions into
account in formulating the RFC. Tr. 56. The ALJ passed over,
without comment, the opinions of physician assistant Frank
Hillman. The ALJ found plaintiff's statements regarding
the intensity, persistence, and limiting effects of her
symptoms not entirely consistent with the medical evidence
and record. The ALJ did not consider a Work Activity
Questionnaire that plaintiff's former employer completed.
The ALJ afforded “no more than limited weight” to
the statements of plaintiff's partner, Robert R., and
sister, Theresa R. Tr. 54-55. At step four, the ALJ found
plaintiff capable of performing past relevant work as a human
resources assistant. Tr. 57. The ALJ thus found
plaintiff not disabled under the Act and not entitled to
asserts that the ALJ made four errors: (1) he failed to
provide sufficient, legitimate bases to reject Dr.
Kosek's opinions; (2) he failed to provide legally
sufficient bases to reject P.A. Hillman's opinions; (3)
he failed to provide specific, clear and convincing reasons
to reject plaintiff's subjective symptom testimony; and
(4) he failed to provide legally sufficient bases to reject
the lay witness testimony. The Court should find that the ALJ
erred in evaluating plaintiff's subjective symptom
testimony and in discounting the lay witness opinions of
Robert R. and Theresa R. The Court should find that the ALJ
did not otherwise err.
Treating Medical Source Opinions
Kosek was plaintiff's treating physician in 2014 and
2015. In office visit notes of August 12, 2014, Dr. Kosek
opined that “[d]espite high dose fentanyl, [plaintiff]
remain[ns] disabled.” Tr. 532. In office visit notes of
November 4, 2014, he also wrote that plaintiff “is
disable[d] by her hip and flank pain.” Tr. 527. On
January 28, 2015, he wrote: “I do not do disability
determination evaluations, but if this is needed she can be
referred for this. I [e]xplained to her that I can confirm
that she has pain appropriate to her radiographic findings,
and that is it limi[t]ing her activity despite her current
therapy.” Tr. 521. After commenting on Dr. Kosek's
records, the ALJ wrote, “After review of the full
record at the hearing level, the undersigned has limited the
claimant to sedentary residual functional capacity with
additional postural limitations taking into consideration her
history of lumbar degenerative disc disease status post
multiple surgical interventions.” Tr. 56. Plaintiff
argues that the ALJ erred in failing to properly weigh Dr.
weight given to the opinion of a physician depends on whether
the physician is a treating, examining, or nonexamining
physician. Holohan v. Massanari, 246 F.3d 1195, 1202
(9th Cir. 2001) (citing 20 C.F.R. § 404.1527). If a
treating or examining physician's opinion is not
contradicted by another physician, the ALJ may only reject it
for clear and convincing reasons. Id. (treating
physician); Widmark v. Barnhart, 454 F.3d 1063, 1067
(9th Cir. 2006) (examining physician). Even if it is
contradicted by another physician, the ALJ may not reject the
opinion without providing specific and legitimate reasons
supported by substantial evidence in the record.
Orn, 495 F.3d at 632; Widmark, 454 F.3d at
1066. “An ALJ can satisfy the ‘substantial
evidence' requirement by setting out a detailed and
thorough summary of the facts and conflicting clinical
evidence, stating his interpretation thereof, and making
findings.” Garrison v. Colvin, 759 F.3d 995,
1012 (9th Cir. 2014) (quotation omitted). “The ...