United States District Court, D. Oregon
OPINION AND ORDER
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
Kelsi R. brings this action for judicial review of the
Commissioner of Social Security's
(“Commissioner's”) decision denying her
application for Supplemental Security Income
(“SSI”) under Title XVI of the Social Security
Act (“the Act”). This court has jurisdiction
under 42 U.S.C. §§ 405(g) and 1383(c).
AND FACTUAL BACKGROUND
applied for SSI on August 13, 2013, alleging disability
beginning January 23, 2009. Tr. 20. The claim was denied
initially and upon reconsideration. Id. Plaintiff
timely requested a hearing before an ALJ and appeared before
the Honorable Katherine Weatherly on July 14, 2016. Tr. 20,
43-61. ALJ Weatherly denied Plaintiff's application in a
written decision dated September 15, 2016. Tr. 20-30.
Plaintiff sought review from the Appeals Council, which was
denied, rendering the ALJ's decision the final decision
of the Commissioner. Plaintiff now seeks judicial review of
reviewing court shall affirm the Commissioner's decision
if the decision is based on proper legal standards and the
legal findings are supported by substantial evidence in the
record. 42 U.S.C. § 405(g); Batson v. Comm'r of
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Hill v. Astrue,
698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine
whether substantial evidence exists, a court reviews the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. See20 C.F.R. §§ 404.1520 &
416.920. The initial burden of proof rests upon the claimant
to meet the first four steps. Id. If the claimant
satisfies her burden with respect to the first four steps,
the burden shifts to the Commissioner at step five.
Id.; see also Johnson v. Shalala, 60 F.3d
1428, 1432 (9th Cir. 1995). At step five, the Commissioner
must show that the claimant is capable of making an
adjustment to other work after considering the claimant's
residual functional capacity (“RFC”), age,
education, and work experience. 20 C.F.R. §§
404.1520(a)(4)(v) & 416.920(a)(4)(v). If the Commissioner
fails to meet this burden, then the claimant is disabled.
Id. 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. Id.; see also Bustamante
v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
present case, the ALJ found that Plaintiff was not disabled.
At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the application date. Tr.
22. At step two, the ALJ found Plaintiff had the following
severe impairments: “migraine headaches, idiopathic
scoliosis, mild intellectual disability, ADHD by history,
anxiety disorder NOS/mild PTSD, and depressive disorder
NOS.” Id. At step three, the ALJ found
Plaintiff did not have an impairment or combination of
impairments that met or equaled the requirements of a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr.
to step four, the ALJ determined that Plaintiff's RFC
allowed her to perform light work as defined in 20 C.F.R.
404.1567(b), with the following limitations:
she needs to avoid all exposure to workplace hazards, such as
heights and heavy machinery. The claimant can understand,
remember, and carry out simple, routine, and repetitive tasks
with no more than occasional contact with the general public.
Tr. 25. At step four, the ALJ found that Plaintiff had no
past relevant work. Tr. 28. At step five, the ALJ found that,
based on Plaintiff's age, education, work experience and
RFC, jobs existed in significant numbers in the national
economy such that Plaintiff could sustain employment despite
her impairments. Tr. 29-30. Specifically, the ALJ found
Plaintiff could perform the representative occupations of:
hand packager, Dictionary of Occupational Titles
(“DOT”) #920.587-018; laundry laborer,
DOT #361.687-018; and clothes marker, DOT
#369.687-026. Tr. 30. As a result, the ALJ concluded that
Plaintiff was not disabled within the meaning of the Act.
contends that the ALJ erred by: (1) erroneously discounting
Plaintiff's subjective symptom testimony; (2) improperly
rejecting the medical opinion evidence of Dr. South and Dr.
Ward; and (3) failing to adequately account for
Plaintiff's social limitations in the RFC.
Subjective Symptom Testimony
claimant has medically documented impairments that could
reasonably be expected to produce some degree of the symptoms
complained of, and the record contains no affirmative
evidence of malingering, “the ALJ can reject the
claimant's testimony about the severity of . . . symptoms
only by offering specific, clear and convincing reasons for
doing so.” Smolen v. Chater, 80 F.3d 1273,
1281 (9th Cir. 1996) (internal citation omitted). A general
assertion the claimant is not credible is insufficient; the
ALJ must “state which . . . testimony is not credible
and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915,
918 (9th Cir. 1993). The reasons proffered 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) (internal citation omitted).
If the ALJ's finding regarding the claimant's
subjective symptom testimony is “supported by
substantial evidence in the record, [the court] may not
engage in second-guessing.” Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal
March 28, 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
at2016 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 ALJ must 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.
Activities of Daily Living
of daily living can form the basis for an ALJ to discount a
claimant's testimony in two ways: (1) as evidence a
claimant can work if the activities “meet the threshold
for transferable work skills”; or (2) where the
activities “contradict [a claimant's]
testimony.” Orn v. Astrue,495 F.3d 625, 639
(9th Cir. 2007). Here, the ALJ relied on the former, finding
that Plaintiff's ability to care for her two children
indicates that she would be able to sustain work activities
on a regular basis. Tr. 26. “[D]aily activities may be
grounds for an adverse credibility finding ‘if a
claimant is able to spend a substantial part of his day
engaged in pursuits involving the performance of physical
functions that are transferable to a work
setting.'” Orn, 495 F.3d at 639 (quoting
Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
The ALJ, however, did not identify how any of Plaintiff's
activities transferred to gainful work; instead, the ALJ
offered a boilerplate statement that Plaintiff's
activities indicated she was able to work. The ALJ's
rationale is not clear and ...