United States District Court, D. Oregon
Katherine L. Eitenmiller and Brent Wells, Harder, Wells,
Baron & Manning, pc, 474 Willamette Street, Eugene, OR
97401. 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; Sarah L. Martin, 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.
R. (“Plaintiff”) seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying
Plaintiff's application for both Disability Insurance
Benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. §§ 401-33, and for
Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act, 42 U.S.C. §§
401-33. For the following reasons, the Commissioner's
decision is reversed and remanded.
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
was born on December 11, 1979. AR 80. Plaintiff applied for
both DIB and SSI, alleging a disability onset date of
November 22, 2013. AR 16. As of the alleged disability onset
date, Plaintiff was nearly 34 years old. AR 80. She alleged
disability due to obesity, liver disease, bipolar disorder,
borderline personality disorder, and severe pain. AR 272.
Plaintiff's applications were denied both initially and
upon reconsideration, and a hearing was held before
Administrative Law Judge (“ALJ”) B. Hobbs on May
17, 2017. AR 16. The ALJ denied Plaintiff's claims on
July 19, 2017. AR 13. The Appeals Court denied review on
October 4, 2017, making the ALJ's decision the final
decision of the Commissioner. AR 1. 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, 2019. AR 18.
Thus, for Plaintiff's DIB claim, she must establish
disability on or before that date. At step one, the ALJ found
that Plaintiff had performed substantial gainful activity
during the claimed disability period, with a total of $4, 824
in earnings. Id. The ALJ considered that job an
unsuccessful work attempt, however, because Plaintiff left
the job due to a reported aggravation of her post-traumatic
stress disorder (“PTSD”). AR 18-19. At step two,
the ALJ found that Plaintiff had the following severe
impairments: PTSD; major depressive disorder; irritable bowel
syndrome (“IBS”); obesity; fatty liver disease;
gastroesophageal reflux disease (“GERD”); and
gastroparesis. AR 19. 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. AR19-20.
then determined that Plaintiff retained the RFC to perform
light work with the following additional limitations:
[Plaintiff] is limited to frequent stopping, crouching,
kneeling, crawling, and climbing ramps and stairs.
[Plaintiff] can have no more than infrequent interactive
contact with the public, coworkers, or supervisors.
[Plaintiff] requires access to a bathroom within five minutes
travel time from the workstation.
AR 21. At step four, the ALJ found that Plaintiff was unable
to perform past relevant work as a fast food worker. AR 26.
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 27-28. Ultimately,
the ALJ found that Plaintiff was not disabled. AR 28.
argues that the ALJ erred by: (A) failing to identify
specific clear and convincing reasons supported by
substantial evidence for rejecting Plaintiff's subjective
testimony; (B) failing to provide sufficient reasons to
discount the treating medical testimony by Jay Richards, DO,
and Stephanie Casey, DO, as well as the examining medical
testimony by Raymond Noland, MD; and (C) rejecting lay
witness testimony without providing reasons germane to each
of those witnesses.
Rejection of Plaintiff's Subjective Testimony
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 ...