United States District Court, D. Oregon
OPINION AND ORDER
Michael H. Simon United States District Judge
S. Coon and Scott A. Sell, Thomas, Coon, Newton & Frost,
820 SW Second Avenue Suite 200, Portland, OR. Of Attorneys
J. Williams, United States Attorney, Renata Gowie, Assistant
United States Attorney, United States Attorney's Office,
1000 S.W. Third Avenue, Suite 600, Portland, OR 97204;
Stephen Dmetruk, 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.
M. (“Plaintiff”) seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying
Plaintiff's application for Supplemental Security Income
(“SSI”) under 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 further proceedings.
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 on which the Commissioner did
not rely. Id.; see also Bray, 554 F.3d at
filed an application for SSI protectively filed on February
12, 2015. Administrative Record (“AR”) 156.
Plaintiff alleged disability beginning on October 1, 2014,
due to diabetes mellitus, inflammatory bowel disease or
Crohn's disease, liver disease, respiratory disorder,
peripheral neuropathy, anxiety, and urinary and fecal
incontinence. AR 176. Plaintiff was born on September 26,
1972, and on the date of her alleged onset of disability was
42 years old. The Commissioner initially denied
Plaintiff's application on August 25, 2015, and again
denied her application upon reconsideration on January 7,
2016. AR 69, 85. Plaintiff filed a written request for a
hearing before an Administrative Law Judge
(“ALJ”), which was heard on July 7, 2017. At the
hearing Plaintiff testified and was represented by an
attorney. AR 37-63. The ALJ heard testimony from Plaintiff
and a vocational expert, Paul Morrison, regarding
Plaintiff's condition. AR 57-62. On September 28, 2017,
the ALJ issued a decision finding Plaintiff not disabled. AR
29. The Appeals Council declined to review the ALJ's
decision, making the ALJ's decision the final decision of
the Commissioner. AR 1. Plaintiff now seeks judicial review
of the ALJ's decision.
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 can 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.