United States District Court, D. Oregon, Portland Division
REPORT AND RECOMMENDATION
D. CLARKE, UNITED STATES MAGISTRATE JUDGE
O. ("Plaintiff) seeks judicial review of the final
decision of the Commissioner of the Social Security
Administrations ("Commissioner") denying his
application for disability insurance benefits
("DIB") under Title II of the Social Security Act
("the Act"). For the reasons below, the
Commissioner's decision should be REVERSED and this case
should be REMANDED for further proceedings.
October 1983, Plaintiff was thirty-six old on the amended
alleged onset date. Tr. 18, 36, 170, 1547-48. Plaintiff
completed police academy training in 2012; and, at the time
of his hearing, he was taking online college courses. Tr.
227, 294, 346, 355, 1549-51. He is a United States Army
veteran and has past work experience as a communications
technician and panel assembler. Tr. 1571. Plaintiff alleged
disability due to post-concussion syndrome, post-traumatic
stress disorder ("PTSD"), seizure disorder,
migraines, cervical spine arthritis, unstable right knee,
thoracolumbar sprain, and right knee pain. Tr. 226.
applied for DIB on June 26, 2014, with an amended disability
onset date of March 12, 2015, and a date last insured of
Match 31, 2016. Tr. 18, 21, 170-76. Plaintiff timely
requested an administrative hearing and appeared before an
Administrative Law Judge ("ALJ") at a hearing on
November 30, 2016. Tr. 118-19, 1544-78. Plaintiff testified
at the hearing, as did a vocational expert. Tr. 1544-78. On
May 15, 2017, the ALJ issued a decision finding Plaintiff not
disabled under the Act. Tr. 18-37. After the Appeals Council
denied his request for review, Plaintiff timely filed a
complaint in this court. Tr. 1-6.
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 V 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
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.
a. 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 step four.
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 Or. 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 five-step analysis, the ALJ made the following findings:
1. Plaintiff had not engaged in substantial gainful activity
from the period of March 12, 2015, the amended alleged onset
date, through March 31, 2016, the date last insured. Tr.21.
2. Plaintiff has the following severe impairments:
degenerative disc disease; seizure disorder; migraines;
vertigo; right chronic knee strain; and obstructive sleep
apnea; history of traumatic brain injury; depressive
disorder; anxiety disorder; post-traumatic stress disorder
("PTSD"); and cognitive disorder. Id.
3. Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments. Id.
a. Plaintiff has the RFC to perform medium work as defined in
20 C.F.R. § 404.1567(c), but with the following
limitations: He could never crawl and climb ladders, ropes,
or scaffolds. He could occasionally balance, stoop, kneel,
crouch, and climb ramps or stairs. He had to avoid
concentrated exposure to hazards. He could perform simple
repetitive tasks consistent with unskilled work. He could
never have public contact. He could have occasional
superficial contact with co-workers. He could have occasional
contact with supervisors. He could perform low-stress work,
defined as work that required few decisions/changes. He could
perform at a standard or ordinary pace, but not at a strict
production rate pace in which he had no control over the
speed of his work. Tr. 23-24.
4. Plaintiff is unable to perform any past relevant work. Tr.
5. Considering Plaintiffs age, education, work experience,
and RFC, there were jobs that exist in significant numbers in
the national economy that the claimant can perform.
therefore concluded Plaintiff was not disabled as defined by
the Act. Tr. 37.
reviewing court must affirm the Commissioner's decision
if it is based on the 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 Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); 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,' or more
clearly stated, 'such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion.'" Bray v. Comm 'r Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). In reviewing the Commissioner's alleged errors,
this Court must weigh "both the evidence that supports
and detracts from the [Commissioner's] conclusions."
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.
1986). Variable interpretations of the evidence are
insignificant if the Commissioner's interpretation is
rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th
the evidence before the ALJ is subject to more than one
rational interpretation, the Commissioner's conclusion
must be upheld. Batson, 359 F.3d at 1198 (citing
Andrews, 53 F.3d at 1041). "However, a
reviewing court must consider the entire record as a whole
and may not affirm simply by isolating a 'specific
quantum of supporting evidence.'" Robbins v.
Soc. Sec. Admin., 466 F, 3d 880, 882 (9th Cir. 2006)
(quoting Hammock, 879 F.2d at 501). Additionally, a
reviewing court "cannot affirm the [Commissioner's]
decision on a ground that the [Administration] did not invoke
in making its decision." Stout v. Comm 'r Soc.
Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)
(citations omitted). Finally, a court may not reverse an
ALJ's decision on account of an error that is harmless.
Id. at 1055-56.
where findings are supported by substantial evidence,
"the decision should be set aside if the proper legal
standards were not applied in weighing the evidence and
making the decision." Flake v. Gardner, 399
F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42
U.S.C. § 405(g), the reviewing court has the power to
enter, upon the pleadings and transcript record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner, with or without remanding the case for a
assigns error to seven portions of the ALJ's decision.
First, he contends the ALJ erred by not finding certain
impairments severe at step two. Second, Plaintiff asserts
that the ALJ erroneously found his impairments did not
satisfy a Listing at step three. Third, he contends the ALJ
failed to supply legally sufficient reasons for rejecting
Plaintiffs Veterans Affairs ("VA") disability
rating. Fourth, he argues the ALJ improperly discounted his
subjective symptom testimony. Fifth, Plaintiff argues the ALJ
erroneously rejected the third-party statement from his wife.
Sixth, Plaintiff asserts the ALJ erroneously rejected
relevant medical opinion evidence. Seventh, and finally, he
challenges the ALJ's step five finding.
The ALJ properly evaluated Plaintiff's severe ...