United States District Court, D. Oregon
Sherwood J. Reese, Drew L. Johnson, PC, Of Attorneys for
J. Williams, United States Attorney, and Renata Gowie,
Assistant United States Attorney, United States
Attorney's Office, Thomas M. Elsberry, Special Assistant
United States Attorney, Office of General Counsel, Social
Security Administration, Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon, District Judge.
D. (“Plaintiff”) seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying his
application for supplemental security income
(“SSI”) under Title XVI of the Social Security
Act. Because the Commissioner's decision is not based on
the proper legal standards and the findings are not supported
by substantial evidence, the decision is REVERSED and
REMANDED for immediate calculation of benefits.
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
applied for SSI on July 24, 2013. Administrative Record
(“AR”) 18. He alleged disability beginning March
16, 2007, due to bipolar disorder, acid reflux, arthritis,
Crohn's disease, and a back condition. AR 18, 65.
Plaintiff was born in 1970 and was 36 years old on the
alleged disability onset date. AR 65. Plaintiff has a high
school education. AR 41. From 1997 to 2003, Plaintiff owned
and operated a hair salon. From 2005 to 2008, Plaintiff
worked for short periods as an art gallery manager, a real
estate agent, the manager of a tuxedo rental company, the
manager of a retail outlet store for skin and body care, and
then, once again, operated his own hair salon. AR 42-43, 190.
Commissioner initially denied Plaintiff's application on
April 17, 2014, and again on reconsideration on November 26,
2014. AR 18. Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”), which was held
on August 3, 2016. AR 35. At the hearing, the ALJ heard
testimony from Plaintiff and vocational expert
(“VE”) Vernon Arnd. AR 35-63. The ALJ issued a
decision on December 9, 2016, finding Plaintiff not disabled.
petitioned the Appeals Council for review. AR 149-50. The
Appeals Council denied his petition on November 16, 2017, at
which date the ALJ's decision became the final decision
of the Commissioner. AR 1-3. Plaintiff now seeks review in
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
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since July 24, 2013, the
application date. AR 20. At step two, the ALJ found that
Plaintiff had the following severe impairments:
“fibromyalgia, obesity, bipolar I disorder, panic
disorder with agoraphobia, Attention Deficit Disorder (ADD),
and chronic pain syndrome.” Id. The ALJ found
that Plaintiff's status post kidney stone, mild carpal
tunnel syndrome, gastric esophageal reflux disease, arthritis
in the hip, status post laparoscopic cholecystectomy, and
mild lumbar spine degenerative disc disease were non-severe.
Id. The ALJ also concluded that there was a lack of
objective evidence to substantiate the existence of
Plaintiff's alleged knee injury as a medically
determinable impairment. AR 20-21.
three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled one of the listed impairments. AR 21-23.
The ALJ next assessed Plaintiff's RFC and found that
Plaintiff could perform light work as defined in 20 C.F.R.
416.967(b), with certain limitations. AR 23. Specifically,
the ALJ found that Plaintiff needs to use a cane at all
times; is limited to standing or walking a total of four
hours in an eight-hour workday with no limits on sitting; can
only occasionally climb, balance, stoop, kneel, crouch and
crawl; is limited to frequent reaching, handling, fingering,
and feeling; cannot work around hazards; can understand,
remember, and carry out simple, routine, repetitive tasks;
and is limited to no more than occasional contact with the
general public or coworkers. AR 23.
four, the ALJ determined that Plaintiff was unable to perform
his past relevant work. AR 27. At step five, the ALJ relied
on the VE's testimony to conclude that Plaintiff could
perform jobs that exist in significant numbers in the
national economy, including wire worker and electrical
accessory assembler. AR 27-28. The ALJ thus found that
Plaintiff was not disabled. AR 28-29.
argues that the ALJ erred by: (A) failing to provide clear
and convincing reasons for discounting Plaintiff's
subjective symptom testimony; (B) improperly assessing the
medical opinions of treating psychiatric mental health nurse
practitioners (“PMHNPs”) Christine Menager and
Elizabeth Churchill and treating physician Mark Lyon, M.D.;
and (C) improperly rejecting the lay testimony of
Plaintiff's mother and Plaintiff's friend.
Plaintiff's Symptom Testimony
argues that the ALJ improperly discounted his subjective
symptom testimony. There is a two-step process for evaluating
the credibility of 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, 503 F.3d at 1036
(quoting Smolen, 80 F.3d at 1281). It is “not
sufficient for the ALJ to make only general findings; [s]he
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
Ruling (“SSR”) 96-7p, governing the assessment of
a claimant's “credibility, ” and replaced it
with 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 of the evidence in an individual's record
when evaluating the intensity and persistence of symptoms.
Id. at *1-2. The 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, 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