United States District Court, D. Oregon
A. Manning HARDER WELLS BARON & MANNING, PC Attorney for
Gowie U.S. ATTORNEY'S OFFICE - DISTRICT OF OREGON Michael
S. Howard SOCIAL SECURITY ADMINISTRATION Office of the
General Counsel Attorneys for Defendant
OPINION & ORDER
M. COFFIN, UNITED STATES MAGISTRATE JUDGE
Suzanne E. brings this action seeking judicial review of the
Commissioner's final decision to deny Plaintiff's
claim for social security disability insurance benefits
(DIB). This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)).
Because the Administrative Law Judge (“ALJ”)
failed to provide clear and convincing reasons for
discounting Plaintiff's testimony, the Court reverses and
remands the decision for further proceedings.
applied for DIB on December 2, 2014, alleging an onset date
of October 2, 2014. Tr. 60. Her application was denied
initially and on reconsideration. Tr. 60, 91. On December 20,
2016, Plaintiff appeared, with counsel, for a hearing before
an ALJ. Tr. 40-59. On February 17, 2017, the ALJ found
Plaintiff not disabled. Tr. 29. The Appeals Council denied
review. Tr. 1-6.
alleges disability based on fibromyalgia, gastrointestinal
bleeding, inflammatory bowel disease, thyroid disorder,
asthma, anxiety disorder, depression, hand/wrist problem,
myalgia, and myositis. Tr. 62. At the time of the hearing,
she was 49 years old. Tr. 73 (stating date of birth). She
obtained a GED. Tr. 44. Plaintiff has past work experience as
a dietary aide, bartender, pizza deliverer, and shift
manager. Tr 45-47.
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), 1382c(a)(3)(A).
claims are evaluated according to a five-step procedure.
See Valentine v. Comm'r, 574 F.3d 685, 689 (9th
Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the
ultimate burden of proving disability. Id.
first step, the Commissioner determines whether a claimant is
engaged in “substantial gainful activity.” If so,
the claimant is not disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b),
416.920(b). In 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). If
not, the claimant is not disabled.
three, the Commissioner determines whether plaintiff's
impairments, singly or in combination, meet or equal
“one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity.” Yuckert, 482
U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d).
If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four.
Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant,
despite any impairment(s), has the residual functional
capacity (“RFC”) to perform “past relevant
work.” 20 C.F.R. §§ 404.1520(e), 416.920(e).
If the claimant can perform past relevant work, the claimant
is not disabled. If the claimant cannot perform past relevant
work, the burden shifts to the Commissioner. In step five,
the Commissioner must establish that the claimant can perform
other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R.
§§ 404.1520(e) & (f), 416.920(e) & (f). If
the Commissioner meets his burden and proves that the
claimant is able to perform other work which exists in the
national economy, the claimant is not disabled. 20 C.F.R.
§§ 404.1566, 416.966.
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since her alleged onset date.
Tr. 20. Next, at steps two and three, the ALJ determined that
Plaintiff has the following severe impairments: obesity,
fibromyalgia, “degenerative joint disease knee, ”
“degenerative disc disease spine, ” and
depression; however, the impairments or combination of
impairments did not meet or medically equal the severity of
one of the listed impairments. Tr. 20-21.
four, the ALJ concluded that before May 1, 2016, Plaintiff
had the RFC to perform light work as defined in 20 C.F.R.
§§ 404.1567(b), except “[Plaintiff] can
occasionally climb, stoop, crouch, kneel, and crawl. She
should avoid concentrated exposure to noxious fumes and
odors, and workplace hazards. She can perform simple, entry
level work in a routine environment involving no interaction
with the public.” Tr. 23.
this RFC, the ALJ determined that Plaintiff is unable to
perform any of her past relevant work. Tr. 27. However, at
step five, the ALJ determined that Plaintiff is able to
perform jobs that exist in significant numbers in the
national economy such as light janitor/housekeeping and
assembler. Tr. 28. Thus, the ALJ determined that Plaintiff is
may set aside the Commissioner's denial of benefits only
when the Commissioner's findings “are based on
legal error or are not supported by substantial evidence in
the record as a whole.” Vasquez v. Astrue, 572
F.3d 586, 591 (9th Cir. 2009) (internal quotation marks
omitted). “Substantial evidence means 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.” Id. (internal quotation
marks omitted). The court considers the record as a whole,
including both the evidence that supports and detracts from
the Commissioner's decision. Id.;
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007). “Where the evidence is susceptible to more
than one rational interpretation, the ALJ's decision must
be affirmed.” Vasquez, 572 F.3d at 591
(internal quotation marks and brackets omitted); see also
Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
(“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”) (internal quotation marks
argues the ALJ erred by (1) relying on the
“stale” opinion of non-examining state agency
consultant Dr. Davenport when evaluating Plaintiff's
fibromyalgia, and (2) improperly discounting Plaintiff's
testimony. The Court finds that the ALJ reasonably relied on
Dr. Davenport's opinion. However, because the ALJ erred
in his consideration of Plaintiff's testimony, the Court
reverses the ALJ's decision and remands the case for
The ALJ reasonably relied on Dr. ...