United States District Court, D. Oregon
Scott Wayson, Cascadia Disability Law, llc, P.O. Box 12028,
Portland, OR 97212. Of Attorneys for Plaintiff.
J. Williams, United States Attorney, and Renata Gowie,
Assistant United States Attorney, United States
Attorney's Office, 1000 SW Third Avenue, Suite 600,
Portland, OR 97204; Erin F. Highland, Special Assistant
United States Attorney, Office of General Counsel, Social
Security Administration, 701 Fifth Avenue, Suite 2900 M/S
221A, Seattle, WA 98104. Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon, United States District Judge.
L. (“Plaintiff) seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying
Plaintiffs application for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security
Act, 42 U.S.C. §§ 401-33. For the following
reasons, the Commissioner's decision is reversed and
district court must affirm the Commissioner's decision if
it is based on the proper legal standards and the findings
are supported by substantial evidence. 42 U.S.C. §
405(g); see also Hammock v. Bowen, 879 F.2d 498, 501
(9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a
preponderance.” Bray v. Comm 'r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). It means “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. (quoting Andrews, 53
F.3d at 1039).
the evidence is susceptible to more than one rational
interpretation, the Commissioner's conclusion must be
upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are
insignificant if the Commissioner's interpretation is a
rational reading of the record, and this Court may not
substitute its judgment for that of the Commissioner. See
Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d
1190, 1193, 1196 (9th Cir. 2004). “[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) (quoting Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation
marks omitted)). A reviewing court, however, may not affirm
the Commissioner on a ground upon which the Commissioner did
not rely. Id; see also Bray, 554 F.3d at 1226.
was born on August 27, 1966. AR 221. Plaintiff applied for
Disability Insurance Benefits on December 29, 2013, AR 126,
alleging a disability onset date of August 1, 2009.
Id. As of the alleged disability onset date,
Plaintiff was 42 years and 11 months old. Id.
Plaintiff alleges that she is disabled due to high blood
pressure, arthritis, edema in the lower extremities, bipolar
disorder, PTSD from childhood trauma, and post-concussive
syndrome resulting from a fall in 2009. Id.
Disability Determination Services denied Plaintiffs claim on
November 25, 2014 and denied her claim upon reconsideration
on February 7, 2015. AR 10. Plaintiff appeared at a hearing
held before Administrative Law Judge (“ALJ”)
Richard Geib on May 18, 2016. AR 75-77. A second hearing was
held before the ALJ on February 14, 2017, but Plaintiff did
not appear that hearing. The ALJ denied Plaintiffs claims on
February 28, 2017. AR 7. On March 13, 2017, Plaintiff
requested review of the ALJ's decision by the Appeals
Council, which the Appeals Council denied. ECF 8. Plaintiff
now seeks review in this Court.
The Sequential Analysis
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); see
also 20 C.F.R. §§ 404.1520 (DIB), 416.920
(SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
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. §§ 404.1520(a)(4)(i),
416.920(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. §§
404.1520(a)(4)(i), 416.920(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.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments 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).
Unless expected to result in death, this impairment must have
lasted or 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),
416.920(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? If so, then the
claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment
does not meet or equal one or more of the listed impairments,
the analysis continues. At that point, the ALJ must evaluate
medical and other relevant evidence to assess and determine
the claimant's “residual functional capacity”
(“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),
404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ
determines the claimant's RFC, the analysis proceeds to
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), 416.920(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
(9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Id. at 953; see also Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S.
at 140-41. The Commissioner bears the burden of proof at step
five. Tackett, 180 F.3d at 1100. 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.” Id; 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), 416.920(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 953-54; Tackett,
180 F.3d at 1099.
The ALJ's Decision
found that Plaintiff met the insured status requirements of
the Social Security Act through September 30, 2014. AR 13. At
step one, the ALJ found that Plaintiff had not performed
substantial gainful activity between the alleged onset date
of August 1, 2009 and her last insured date of September 30,
2014. Id. At step two, the ALJ found that Plaintiff
had the following severe impairments: bilateral knee
osteoarthritis status post total knee replacement,
degenerative disc disease, obesity. Id. The ALJ also
found that Plaintiff had the following mental impairments:
PTSD, other specific anxiety disorder, unspecified
neurocognitive disorder, and bipolar disorder. AR 13-14. At
step three, the ALJ found that Plaintiff did not have an
impairment or a combination of impairments that met or
medically equaled one of the impairments listed in the
regulations. AR 14-15.
then determined that Plaintiff retained the RFC to perform
light work as defined in 20 C.F.R. § 404.1567(b) with
the following limitation:
[Plaintiff] could frequently climb ramps and stairs, but
never climb ladders, ropes, and scaffolds. She could never
kneel. She could occasionally stoop crouch and crawl. She
should have avoided even moderate exposure to work hazards.
She could perform simple, routine tasks with occasional
public and coworker contact (defined as interaction, and not
relating to working in proximity to others).
four, the ALJ found that Plaintiff was unable to perform past
relevant work as a clinical social worker and a university
professor because those are skilled occupations, and
Plaintiff was limited to unskilled work during the time
period relevant to DIB calculation. AR 25. At step five, the
ALJ identified three jobs in the national economy that
Plaintiff could perform based on her age, education, work
experience, and RFC. AR 25-27. The ALJ concluded that
Plaintiff was not disabled between the alleged onset date of
August 1, 2009 and the date last insured of September 30,
2014. AR 27.
argues that the ALJ erred by: (A) improperly rejecting
subjective symptom testimony given by Plaintiff; (B)
improperly rejecting the treating source opinions of Dr.
Reams, Dr. Kuttner, and Dr. Lamprecht; (C) improperly
rejecting lay witness source testimony given by Plaintiffs
husband, Dr. John G.; and (D) improperly finding that
Plaintiff did not have an impairment or a combination of
impairments that met or medically equaled one of the
impairments listed in the regulations.
Rejection of Plaintiffs Subjective Testimony
claimant “may make statements about the intensity,
persistence, and limiting effects of his or her
symptoms.” SSR 16-3p, 2017 WL 5180304, at *6. The ALJ
is responsible for determining credibility, resolving
conflicts in medical testimony, and resolving
ambiguities.” Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). The Ninth Circuit has
consistently held that the ALJ must provide specific, clear
and convincing reasons to reject a claimant's symptom
testimony. E.g., Smolen v. Chater, 80 F.3d 1273,
1280 (9th Cir. 1996).
is a two-step process for evaluating a claimant's
testimony regarding 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, 80 F.3d at 1282.
“Second, if the claimant meets this first test, and
there is no evidence of malingering, ...