United States District Court, D. Oregon
M. Rebers, Robyn M. Rebers LLC Attorneys for Plaintiff.
J. Williams, United States Attorney, and Renata Gowie,
Assistant United States Attorney, United States
Attorney's Office, Joseph J. Langkamer, Special Assistant
United States Attorney, Office of General Counsel, Social
Security Administration, Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge
O. (“Plaintiff) seeks judicial review of the final
decision by the Commissioner of the Social Security
Administration (“Commissioner”) denying
Plaintiffs application for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(the “Act”). For the reasons stated below, the
Commissioner's decision is reversed.
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.
protectively filed an application for DIB on February 9,
2015, alleging disability beginning June 25, 2014. Plaintiff
was born in November 1973 and was 40 years old at the date of
her alleged disability onset. AR 80. In her application,
Plaintiff alleges the following disabilities: spinal stenosis
of the cervical spine; cervical disc disorder with
myelopathy; cervical disc herniation; essential hypertension;
sinus tachycardia; migraine with aura; and
hypertriglyceridemia. Id. On April 6, 2015, the
Commissioner denied Plaintiffs initial application for
disability, AR 80-87, and again upon reconsideration. AR
89-97. Plaintiff appealed to an Administrative Law Judge
(“ALJ”). On January 25, 2017, a hearing was held
and Plaintiff testified, represented by counsel. AR 37-79. A
medical consultant also testified. Plaintiff, her counsel,
and the medical consultant discussed Plaintiffs psoriatic
arthritis (diagnosed in August 2015, after Plaintiff filed
her application) as a potentially disabling condition. On
March 21, 2017, the ALJ determined that Plaintiff was not
disabled within the meaning of the Act from June 25, 2014
through the date of the decision. AR 18-27. Plaintiff filed
an appeal with the Appeals Council. The Appeals Council
denied review on February 21, 2018. AR 1-3. This denial of
review made the decision of the ALJ the final decision of the
Commissioner. Plaintiff seeks judicial review of that
decision. The Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g) and § 1383(c)(3).
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
performed the sequential analysis. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful
activity since June 25, 2014, the alleged disability onset
date. AR 20. The ALJ noted that although Plaintiff worked and
earned $56 in 2015, her earnings during the period at issue
were below the threshold amount to be considered substantial
gainful activity. Id. At step two, the ALJ found
that Plaintiff had the following severe impairments: spine
disorder; carpal tunnel syndrome; and recurrent arrhythmias.
Id. At step three, the ALJ found that the Plaintiff
did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the
impairments listed in the regulations. AR 20-21.
then determined Plaintiff's RFC, finding that she could
perform light work as defined by the regulations with the
following functional limitations:
She can stand/walk for six hours total in an eight-hour
workday. She can occasionally climb ramps and stairs. She can
never climb ladders, ropes, scaffolds. She can occasionally
balance, stoop, kneel, crouch, and crawl. She can frequently
reach, handle, and finger with her dominant hand. She can
occasionally reach overhead.
AR 22. At step four, the ALJ found that Plaintiff was capable
of performing past relevant work. AR 24. These jobs include:
phlebotomist; photocopy machine operator; electronic
component processor; and can machine tender. AR 24-25.
alternative, the ALJ found that there were other jobs
existing in the national economy that Plaintiff could also
perform. AR 25. At step five, the ALJ found that considering
Plaintiff's age, education, work experience, and RFC,
Plaintiff could perform such jobs as: office helper; mail
clerk; gate guard; and security guard. AR 26. Accordingly,
the ALJ found that Plaintiff had not been under a disability,
as defined in the Act, from June 25, 2014, through the date
of the ALJ decision, March 21, 2017. AR 26-27.
seeks review of the final decision by the ALJ, concluding
that Plaintiff was not disabled. She argues: (A) that the ALJ
erred at steps two and three of the sequential analysis when
she failed to consider whether Plaintiff's psoriatic
arthritis met Listing 14.09(A)(2) for inflammatory arthritis;
(B) that the ALJ's RFC assessment is not supported by
substantial evidence in the record; and (C) that the ALJ
erred when she failed to provide clear and convincing reasons
for rejecting Plaintiffs symptom testimony. The Court will
address each of these arguments in turn.
Exclusion of Psoriatic Arthritis at Steps Two and
first asserts that the ALJ erred by failing to list one of
Plaintiff s most limiting impairments, psoriatic arthritis,
at step two of the sequential analysis, and that the error
was harmful and thus grounds for reversal. Plaintiff
additionally argues that the ALJ erred at step three because
Plaintiffs psoriatic arthritis met Listing 14.09(A)(2) in the
regulations, which directs a finding of disability.