United States District Court, D. Oregon
OPINION AND ORDER
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE.
B. (“Plaintiff”) brings this action pursuant to
42 U.S.C. §§ 405(g) and 1383(c) seeking judicial
review of a final decision of the Commissioner of Social
Security (“Commissioner”) denying his application
for Disability Insurance Benefits (“DIB”) under
the Social Security Act (“Act”). All parties have
consented to allow a Magistrate Judge to enter final orders
and judgment in this case in accordance with Fed.R.Civ.P. 73
and 28 U.S.C § 636(c). For the reasons that follow, the
Commissioner's decision is REVERSED and REMANDED to the
ALJ for the calculation and award of benefits.
February 26, 2014 Plaintiff filed an application for DIB
alleging disability as of May 13, 2013. Tr.
147-48. The Commissioner denied Plaintiff's
application initially, and upon reconsideration, after which
Plaintiff requested a hearing before an Administrative Law
Judge (“ALJ”). Tr. 92-101. Plaintiff and a
vocational expert (“VE”) testified at the hearing
held on December 13, 2016. Tr. 34-55. On January 26, 2017,
the ALJ issued a decision finding Plaintiff was not disabled.
Tr. 13-33. On December 6, 2017, the Appeals Council denied
Plaintiff's request for review, making the ALJ's
decision the final decision of the Commissioner. Tr. 1-6,
145-46. Plaintiff timely filed this complaint for review of
the Commissioner's final decision. ECF No. 1.
was born on February 19, 1978. Tr. 27. He has a
bachelor's degree in chemistry and past relevant work
experience as a quality control technician, chemist, and prep
cook. Tr. 26, 40. He was thirty-five (35) years old at the
time of the alleged onset date of his disability. Tr. 27. He
alleged disability due to major depression, post-traumatic
stress disorder (“PTSD”), anxiety, autism, and
spinal arthritis. Tr. 57.
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) (citation and internal
quotations omitted). This Court must weigh “both the
evidence that supports and detracts from the
[Commissioner's] conclusions.” 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, [this Court] may not substitute [its] judgment for
the ALJ's.” Massachi v. Astrue, 486 F.3d
1149, 1152 (9th Cir. 2007) (citation omitted).
engages in a five-step sequential inquiry to determine
whether a claimant is disabled within the meaning of the Act.
20 C.F.R. § 404.1520(a). The five-step sequential
inquiry is summarized below, as described in Tackett v.
Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
One: The Commissioner determines whether the claimant is
engaged in substantial gainful activity. A claimant who is
engaged in such activity is not disabled. If the claimant is
not engaged in substantial gainful activity, the Commissioner
proceeds to evaluate the claimant's case under step two.
20 C.F.R. § 404.1520(b).
Two: The Commissioner determines whether the claimant
has one or more severe impairments. A claimant who does not
have any such impairment is not disabled. If the claimant has
one or more severe impairment(s), the Commissioner proceeds
to evaluate the claimant's case under step three. 20
C.F.R. § 404.1520(c).
Three: Disability cannot be based solely on a severe
impairment; therefore, the Commissioner next determines
whether the claimant's impairment “meets or
equals” one of the presumptively disabling impairments
listed in the Social Security Administration
(“SSA”) regulations, 20 C.F.R. Part 404, Subpart
P, Appendix 1. A claimant who has an impairment that meets a
listing is presumed disabled under the Act. If the
claimant's impairment does not meet or equal an
impairment in the listings, the Commissioner's evaluation
of the claimant's case proceeds under step four. 20
C.F.R. § 404.1520(d).
Four: The Commissioner determines whether the claimant
is able to perform work he or she has done in the past. A
claimant who can perform past relevant work is not disabled.
If the claimant demonstrates he or she cannot do past
relevant work, the Commissioner's evaluation of
claimant's case proceeds under step five. 20 C.F.R.
§§ 404.1520(e), 404.1520(f).
Five: The Commissioner determines whether the claimant
is able to do any other work. A claimant who cannot perform
other work is disabled. If the Commissioner finds claimant is
able to do other work, the Commissioner must show that a
significant number of jobs exist in the national economy that
claimant is able to do. The Commissioner may satisfy this
burden through the testimony of a vocational expert
(“VE”), or by reference to the Medical-Vocational
Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the
Commissioner demonstrates that a significant number of jobs
exist in the national economy that the claimant is able to
perform, the claimant is not disabled. If the Commissioner
does not meet the burden, the claimant is disabled. 20 C.F.R.
steps one through four of the sequential inquiry, the burden
of proof is on the claimant. Tackett, 180 F.3d at
1098. If the claimant satisfies her burden with respect to
the first four steps, the burden then shifts to the
Commissioner regarding step five. 20 C.F.R. §
404.1520(g). At step five, the Commissioner's burden is
to demonstrate that the claimant can make an adjustment to
other work after considering the claimant's residual
functional capacity (“RFC”), age, education, and
work experience. Id.
one, the ALJ found that Plaintiff met the insured status
requirements of the Act through December 31, 2018 and had not
engaged in substantial gainful activity since May 13, 2013,
the alleged onset date. Tr. 18.
two, the ALJ found that Plaintiff had the following severe
impairments: PTSD, autism, major depressive disorder, anxiety
disorder, lumbar and cervical degenerative disc disease,
peripheral neuropathy, and fibromyalgia. Id.
three, the ALJ found that Plaintiff's impairments or
combination of impairments did not meet or medically equal
the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Tr. 19.
to step four, the ALJ determined Plaintiff's RFC allowed
perform light exertion work with lifting, carrying, pushing,
and pulling 20 pounds occasionally and 10 pounds frequently,
standing and/or walking six hours of an eight-hour workday
and sitting six hours of an eight-hour workday. He can
understand, remember, and carry out simple routine tasks with
simple work related decisions. He can respond appropriately
to coworkers, supervisors, and the public occasionally. Time
off task would be accommodated by normal breaks and absences
would be one day a month or less.
four, the ALJ found that Plaintiff could not perform his past
relevant work as a quality control technician (skilled work
performed at very heavy), chemist (skilled work performed at
very heavy), or prep cook (unskilled work, but performed at
very heavy) given his RFC. Tr. 26.
five, the ALJ concluded that based upon the VE's
testimony and considering the Plaintiff's age, education,
work experience, and RFC, Plaintiff would be capable of
making a successful adjustment to other work that exists in
significant numbers in the national economy.
Specifically, the ALJ found Plaintiff could perform work as a
small products assembler, electronic worker, or electrical
accessory assembler. Tr. 27-28. Therefore, the ALJ found
Plaintiff was not disabled from May 13, 2013 through the date
of the decision. Tr. 28.
argues that the ALJ erred by improperly rejecting: (1)
Plaintiff's testimony; (2) medical
opinions; and (3) lay witness statements from
argues that the ALJ failed to identify a specific, clear, and
convincing basis for rejecting his subjective symptom
is a two-step process for evaluating a claimant's
testimony about the severity and limiting effect of the
claimant's symptoms. Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009). “First, the ALJ must
determine whether the claimant has presented objective
medical evidence of an underlying impairment ‘which
could reasonably be expected to produce the pain or other
symptoms alleged.'” Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting
Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.
1991) (en banc)). When doing so, “the claimant need not
show that her impairment could reasonably be expected to
cause the severity of the symptom she has alleged; she need
only show that it could reasonably have caused some degree of
the symptom.” Smolen v. Chater, 80 F.3d 1273,
1282 (9th Cir. 1996).
if the claimant meets this first test, and there is no
evidence of malingering, ‘the ALJ can reject the
claimant's testimony about the severity of her symptoms
only by offering specific, clear and convincing reasons for
doing so.'” Lingenfelter, 504 F.3d at 1036
(quoting Smolen, 80 F.3d at 1281). It is “not
sufficient for the ALJ to make only general findings; [the
ALJ] must state which pain testimony is not credible and what
evidence suggests the complaints are not credible.”
Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).
Those reasons must be “sufficiently specific to permit
the reviewing court to conclude that the ALJ did not
arbitrarily discredit the claimant's testimony.”
Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995)
(citing Bunnell, 947 F.2d at 345-46).
March 16, 2016, the Commissioner superseded Social Security
Rule 96-7p governing the assessment of a claimant's
“credibility” and replaced it with a new rule,
SSR 16-3p. See SSR 16-3p, available at 2016 WL
1119029. SSR 16-3p eliminates the reference to
“credibility, ” clarifies that “subjective
symptom evaluation is not an examination of an
individual's character, ” and requires the ALJ to
consider all the evidence in an individual's record when
evaluating the intensity and persistence of symptoms.
Id. at *1-2.
Commissioner recommends that the ALJ examine “the
entire case record, including the objective medical evidence;
an individual's statements about the intensity,
persistence, and limiting effects of symptoms; statements and
other information provided by medical sources and other
persons; and any other relevant evidence in the
individual's case record.” Id. at *4. The
Commissioner recommends assessing: (1) the claimant's
statements made to the Commissioner, medical providers, and
others regarding the claimant's location, frequency and
duration of symptoms, the impact of the symptoms on daily
living activities, factors that precipitate and aggravate
symptoms, medications and treatments used, and other methods
used to alleviate symptoms; (2) medical source opinions,
statements, and medical reports regarding the claimant's
history, treatment, responses to treatment, prior work
record, efforts to work, daily activities, and other
information concerning the intensity, ...