United States District Court, D. Oregon, Eugene Division
REPORT AND RECOMMENDATION
D. CLARKE UNITED STATES MAGISTRATE JUDGE
Elizabeth H. seeks judicial review under 42 U.S.C. §
405(g) and § 1383(c)(3) of the final decision of the
Commissioner of the Social Security Administration denying
her application for Disability Insurance Benefits
("DIB"). For the reasons below, the
Commissioner's decision should be REVERSED and REMANDED
for further proceedings.
August 22, 2013, Plaintiff filed an application for DIB,
alleging disability beginning March 13, 2013. Tr. 21. The
claim was denied initially on February 6, 2014, and upon
reconsideration on July 25, 2014. Id. Thereafter,
Plaintiff filed a written request for a hearing on September
10, 2014. Id. Plaintiff appeared and testified at a
hearing before Administrative Law Judge ("ALJ") Tom
L. Morris on July 1, 2016, in Kennewick, Washington, and was
represented by Casey Cox, an attorney. Tr. 35-77. Daniel R.
McKinney Sr., a vocational expert ("VE") also
testified at the hearing. Id. On August 26, 2016,
the ALJ issued a decision denying Plaintiffs claim for
benefits. Tr. 21-30. Plaintiff requested review of the
hearing decision, which was denied by the Appeals Council on
June 10, 2016. Tr. 1-7. Accordingly, the ALJ's decision
became the final decision of the agency from which Plaintiff
seeks judicial review. See 20 C.F.R. §
was born in 1970 and was 42 years old on the alleged onset
date. Tr. 79. She has a high school education in addition to
one year of college. Tr. 29, 188. Plaintiff alleged
disability due to degenerative disk disease, carpal tunnel
syndrome, and bad knees. Tr. 79.
has been diagnosed with asthma, depression, ADHD, carpal
tunnel syndrome, radicular low back pain, osteoarthritis,
severe gastroesophageal reflux disease ("GERD"),
degenerative joint disease, lumbosacral neuritis, migraine
headaches, cervical radiculopathy, chronic low back pain with
radiculopathy, fatigue, obesity, and irritable bowel syndrome
("IBS"). Tr. 83, 452, 517, 536, 546, 668, 833, 874,
997, 1059, 1187. In 2013 and 2014, Plaintiff underwent carpal
tunnel release surgeries. Tr. 326, 364. Despite the
surgeries, Plaintiff continued to suffer from pain due to
carpal tunnel syndrome and continued to experience problems
with her fingers locking. Tr. 266, 344, 647, 662, 1188.
2015, Plaintiff underwent right knee surgery. Tr. 553.
However, several months later, MRI imaging revealed
osteoarthritis in Plaintiffs left knee. Tr. 848-49.
Subsequent imaging revealed osteoarthritis in the right knee
as well. Tr. 1115. Plaintiff was treated with pain
medications as well Cortisone and Lidocaine injections to her
knees. Tr. 551, 1172, 1184-85. Plaintiff also suffered from
back pain throughout the relevant period. Her back pain was
treated with a cocktail of strong pain medications and muscle
relaxers, as well as Toradol and Phenergan injections. Tr.
209, 438, 443, 447, 449, 452, 454, 456, 467, 469, 574, 619,
647, 658, 662, 680, 683-84, 725, 745, 755, 761, 1059, 1092.
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). "Social Security Regulations set out a
five-step sequential process for determining whether an
applicant is disabled within the meaning of the Social
Security Act." Keyser v. Comm 'r. Soc. Sec.
Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is
potentially dispositive. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1. Is the claimant performing "substantial gainful
activity"? 20 C.F.R. §§ 404.l520(a)(4)(i);
4l6.920(a)(4)(i). This activity is work involving significant
mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510; 416.910. If the
claimant is performing such work, she is not disabled within
the meaning of the Act. 20 C.F.R.
§§ 404.l520(a)(4)(i); 4l6.920(a)(4)(i). If the
claimant is not performing substantial gainful activity, the
analysis proceeds to step two.
2. Is the claimant's impairment "severe" under
the Commissioner's regulations? 20 C.F.R. §§
404.152O(a)(4)(ii); 4l6.920(a)(4)(ii). Unless expected to
result in death, an impairment is "severe" if it
significantly limits the claimant's physical or mental
ability to do basic work activities. 20 C.F.R. §§
404.1521(a); 416.921(a). This impairment must have lasted or
must be expected to last for a continuous period of at least
12 months. 20 C.F.R. §§404.1509; 416.909. If the
claimant does not have a severe impairment, the analysis
ends. 20 C.F.R. §§ 404.1520(a)(4)(ii);
4l6.920(a)(4)(ii). If the claimant has a severe impairment,
the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or
equal" one or more of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1
("Listings")? If so, then the claimant is disabled.
20 C.F.R. §§ 404.l520(a)(4)(iii);
4l6.920(a)(4)(iii). If the impairment does not meet or equal
one or more of the listed impairments, the analysis proceeds
to the "residual functional capacity"
a. The ALJ must evaluate medical and other relevant evidence
to assess and determine the claimant's RFC. This is an
assessment of work-related activities that the claimant may
still perform on a regular and continuing basis, despite any
limitations imposed by his or her impairments. 20 C.F.R.
§§ 404.1520(e); 404.l545(b)-(c); 416.920(e);
4l6.945(b)-(c). After the ALJ determines the claimant's
RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant
work" with this RFC assessment? If so, then the claimant
is not disabled. 20 C.F.R. § § 404.1520(a)(4)(iv);
416.920(a)(4)(iv). If the claimant cannot perform his or her
past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and
work experience, is the claimant able to make an adjustment
to other work that exists in significant numbers in the
national economy? If so, then the claimant is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(v); 4l6.920(a)(4)(v);
404.1560(c); 416.960(c). If the claimant cannot perform such
work, he or she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949,
954-55 (9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Id. at 954. The Commissioner bears the burden of
proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other
work that exists in significant numbers in the national
economy, "taking into consideration the claimant's
residual functional capacity, age, education, and work
experience." Tackett v. Apfel, 180 F.3d 1094,
1100 (9th Cir. 1999) (internal citations omitted); see
also 20 C.F.R. §§ 404.1566; 416.966
(describing "work which exists in the national
economy"). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R.
§§404.1520(a)(4)(v); 4l6.92O(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform
other work existing in significant numbers in the national
economy, the claimant is not disabled. Bustamante,
262 F.3d at 954-55; Tackett, 180 F.3d at 1099.
the five-step analysis, the ALJ found:
Plaintiff did not engage in substantial gainful activity
since March 13, 2013, the alleged onset date. (20 C.F.R.
§§ 404.1571 et seq.). Tr. 23.
Plaintiff has the following severe medically determinable
impairments: degenerative joint disease, dysfunction-major
joints, disorders of muscle, ligament and fascia, asthma,
carpal tunnel syndrome, and obesity. (20 C.F.R. §
Plaintiff does not have an impairment or a combination of
impairments that meet or medically equal the severity of one
of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P,
App. 1. (20 C.F.R §§ 404.1520(d), 404.1525 &
a. Plaintiff has the RFC to perform light work as defined in
20 C.F.R. 404.1567(b) but with the following limitations:
Plaintiff can stand and/or walk for a total of about four
hours in an eight-hour workday, sit for a total of six hours
in an eight-hour workday, frequently climb ramps and stairs,
frequently stoop and crouch, occasionally climb ladders,
ropes, scaffolds, kneel, and crawl, occasionally finger with
the right hand, avoid concentrated exposure to fumes, odors,
dusts, gases, and poor ventilation, would be off task under
10% of the time during an eight-hour workday, would be unable
to perform at a production rate pace but could perform goal
oriented work. Tr. 24.
Plaintiff could perform past relevant work as a cashier. (20
C.F.R. § 404.1565). Tr. 27.
Considering Plaintiff s age, education, work experience, and
residual functional capacity, there are additional jobs that
exist in significant numbers in the national economy that
Plaintiff can perform (20 CFR §§ 404.1569 and
404.1569(a)), including: bottle packer and garment sorter.
(SSR 00-4p). Tr. 29.
the ALJ concluded Plaintiff was not disabled as defined by
the Social Security Act. (20 C.F.R. § 404.1520(g)). Tr.