United States District Court, D. Oregon
OPINION & ORDER
AIKEN UNITED STATES DISTRICT JUDGE
Kristyn P, seeks judicial review of the final decision of the
Commissioner of Social Security ("Commissioner").
The decision of the Commissioner is REVERSED and REMANDED for
February 25, 2014, Plaintiff filed an application for
supplemental security income alleging disability beginning
May 25, 2008. Tr. 16. The claims were denied initially
and upon reconsideration. Id. At Plaintiffs request,
a hearing was held before an administrative law judge
("ALJ") on January 30, 2017. Id. On
February 24, 2017, the ALJ issued a decision finding
Plaintiff not disabled. Tr. 30. The Appeals Council denied
Plaintiffs request for review, making the ALJ's decision
the final decision of the Commissioner. Tr. 1. This appeal
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, 648 F.3d
721, 724 (9th Cir. 2011).
The five-steps are: (1) Is the claimant presently working in
a substantially gainful activity? (2) Is the claimant's
impairment severe? (3) Does the impairment meet or equal one
of a list of specific impairments described in the
regulations? (4) Is the claimant able to perform any work
that he or she has done in the past? and (5) Are there
significant No. of jobs in the national economy that the
claimant can perform?
Id. at 724-25; see also Bustamante v.
Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Bustamante, 262 F.3d at 953. The Commissioner bears
the burden of proof at step five. Id. at 953-54. At
step five, the Commissioner must show that the claimant can
perform other work that exists in significant No. in the
national economy, "taking into consideration the
claimant's residual functional capacity, age, education,
and work experience." Tackett v. Apfel, 180
F.3d 1094, 1100 (9th Cir. 1999). 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 No. in the
national economy, the claimant is not disabled.
Bustamante, 262 F.3d at 953-54.
performed the sequential analysis. At step one, the ALJ found
Plaintiff had not engaged in substantial gainful activity
since the application date, February 25, 2014. Tr. 18. The
ALJ determined Plaintiff had the following severe
impairments: asthma, pain syndrome variously diagnosed to
include fibromyalgia and polyavthralgia, mental impairment
(variously diagnosed as including somatic symptom disorder,
alcohol use disorder, in sustained remission, amphetamine use
disorder, in sustained remission, dependent personality
disorder, post-traumatic stress disorder, and major
depressive disorder). Id. The ALJ determined
Plaintiffs impairments did not meet or equal a listed
impairment. Tr. 19.
determined Plaintiff had the RFC to perform a range of light
work with the following additional restrictions: climbing of
ladders, ropes, or scaffolds must be precluded entirely from
work duties as assigned; within the assigned work area there
must be no exposure to hazards such as machinery or heights;
assigned work must be limited to simple 1 or 2 step tasks,
which must be learned in 30 days or less by brief
demonstrations and the tasks must have minimal change in the
tasks as assigned; contact with supervisors, coworkers, and
the general public must be limited to no more than
occasional. Tr. 20-21.
noted Plaintiff was 28 years old on the application date, has
limited education, and is able to communicate in English. Tr.
28. The ALJ found Plaintiff has no past relevant work.
Id. Based on her RFC, the ALJ determined Plaintiff
was able to perform work as a garment sorter, laundry folder,
or bottle line attendant at the light exertional level. Tr.
29. In the alternative, the ALJ determined that Plaintiff was
able to perform work as an addresser/sorter, optical final
assembler, and cutter paster at the sedentary exertional
level. Id. As a consequence, the ALJ determined
Plaintiff was not disabled. Tr. 30.
district court must 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); Balson v. Comm 'r, 359
F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence
"means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(citation and internal quotation marks omitted). In reviewing
the Commissioner's alleged errors, this Court must weigh
"both the evidence that supports and detracts from the
[Commissioner's] conclusion." Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
the evidence before the ALJ is subject to more than one
rational interpretation, courts must defer to the ALJ's
conclusion. Batson, 359 F.3d at 1198 (citing
Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.
1995)). A reviewing court, however, cannot affirm the
Commissioner's decision on a ground that the agency did
not invoke in making its decision. Stout v.
Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006).
Finally, a court may not reverse an ALJ's decision on
account of an error that is harmless. Id. at
1055-56. "[T]he burden of showing that an error is
harmful normally falls upon the party attacking the
agency's determination." Shinseki v.
Sanders, 556 U.S. 396, 409 (2009).
alleges the ALJ erred by (1) failing to properly consider
Plaintiffs pseudoseizures; (2) failed to properly weigh
medical opinion evidence concerning Plaintiffs
rheumatological condition; (3) failed to properly consider
"other medical source" opinion evidence concerning
Plaintiffs mental limitations; and (4) failed to consider
relevant VE testimony at step five of the sequential
contends that the ALJ erred by discounting Plaintiffs
pseudoseizure disorder. As a preliminary matter, Plaintiff
asserts that the ALJ entirely failed to account for
Plaintiffs pseudoseizures at steps two or three of the
sequential analysis. However, at step two of the analysis the
ALJ included "somatic symptom disorder" as one of
Plaintiff s severe impairments. Tr. 18. Under the
regulations, pseudoseizures are included under somatic
symptom disorders. 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.00(B)(6)(a). As for step 3, the ALJ expressly
considered the "severity of the mental impairments,
considered singly and in combination, do not meet or
medically equal the criteria list of listings 12.04, 12.06,
12.07, and 12.08." Tr. 19. Listing 12.07 is the
appropriate listing for pseudoseizures. 20 C.F.R. Pt. 404,
Subpt. 2, App. 1, § 12.00(B)(6). Plaintiff does not