United States District Court, D. Oregon, Portland Division
REPORT AND RECOMMENDATION
D. CLARKE UNITED STATES MAGISTRATE JUDGE
R. ("Plaintiff') seeks judicial review of the final
decision of the Commissioner of the Social Security
Administrations ("Commissioner") denying her
applications for disability insurance benefits
("DIB") under Title II and for supplemental
security income ("SSI") under Title XVI 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 1962, Plaintiff was forty-eight years old on the
amended alleged onset date. Tr. 17, 124, 129. Plaintiff is
the single mother of two children ages nine and eleven, both
of whom have been diagnosed mental health issues. Tr. 50,
656. Plaintiff is a recovering alcoholic who is twenty-eight
years sober, and participates in an Alcoholic Anonymous
("AA") program. Tr. 55. Plaintiff alleges
disability due to depression, obsessive compulsive disorder
("OCD"), attention deficit disorder
("ADD"), neck pain, hip pain, and arthritis. Tr.
317. She has past relevant work as a bookkeeper. Tr. 318.
filed applications for DIB on May 22, 2012, and SSI on
February 19, 2013. Tr. 140, 289-90, 298-303. After an
administrative hearing and subsequent unfavorable decision,
the Appeals Council remanded the matter for further
proceedings. Tr. 90-122, 137-54, 155-56. A second
administrative hearing was held before an administrative law
judge ("ALJ"), on September 28, 2016. Tr. 39-89. On
January 13, 2017, a second ALJ issued a decision finding
Plaintiff not disabled within the meaning of the Act. Tr.
16-31. After the Appeals council denied her request for
review, Plaintiff timely filed a complaint in this Court. Tr.
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)(H), 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)(H), 416.920(a)(4)(H). 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 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,
180F.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 July 1, 2011, the alleged onset date, and
met the insured requirements through December 31, 2014. Tr.
2. Plaintiff has the following severe impairments: obesity;
cervical degenerative disc disease; and "mental health
conditions described variously as [attention deficit disorder
("ADD"), obsessive compulsive disorder
("OCD")] and depression." 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. Tr. 21.
a. Plaintiff has the RFC to perform light work as defined in
20 C.F.R. §§ 404.1567(c), 416.967(b), but with the
following limitations: she is further limited to no more than
frequent handling or fingering bilaterally; she is further
limited to simple, repetitive, routine tasks requiring no
more than occasional contact with supervisors, coworkers, and
the general public, Tr. 23.
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. Tr.
the ALJ concluded Plaintiff was not disabled as defined by
the Act. Tr. 31.
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 numerous portions of the ALJ's decision.
First, she contends the ALJ erred by not finding additional
impairments severe at step two. Second, Plaintiff asserts
that the ALJ erroneously found her impairments did not
satisfy a Listing at step three. Third, she argues the ALJ
improperly discounted her subjective symptom testimony.
Fourth, Plaintiff contends the ALJ erroneously rejected the
third-party statements from her parents. Fifth, Plaintiff
asserts the ALJ erroneously rejected medical opinion
evidence. Sixth, she asserts the ALJ's step five finding
is not supported by substantial evidence. The Court discusses
each assignment of error in turn.
The ALJ properly evaluated Plaintiffs severe impairments at
asserts the ALJ erred in not finding the following
impairments severe at step two: post-traumatic stress
disorder ("PTSD"); chronic strain of the shoulder;
chronic sprain or strain of the left hip/thigh; bilateral
carpal tunnel syndrome; sleep disturbance/insomnia and
fatigue; tinnitus; post-concussion syndrome; chronic joint
pain in bilateral knees; chronic lower back pain;
gastroesophageal reflux disease ("GERD"); and chest
two of the sequential process, the ALJ must determine whether
the claimant has a "medically severe impairment or
combination of impairments." Yuckert, 482 U.S.
at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). To
demonstrate a severe medically determinable impairment
requires a determination that (1) the impairment results from
anatomical, physiological, or psychological abnormalities
which can be shown by medically acceptable clinical and
laboratory diagnostic techniques; and (2) the severity must
be such that it significantly decreases the physical or
mental ability of a person to perform basic work activities.
20 C.F.R. §§ 404.1508, 416.908 (effective through
March 26, 2017). The impairment "must be established
by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by your statement of
symptoms." 20 C.F.R. §§ 404.1528, 416.908.
"Signs, symptoms and laboratory findings" are
(a) Symptoms are your own description of your physical or
mental impairment. Your statements alone are not enough to
establish that there is a physical or mental impairment.
(b) Signs are anatomical, physiological, or psychological
abnormalities which can be observed, apart from your
statements (symptoms). Medically acceptable clinical
diagnostic techniques must show signs[.]
(c) Laboratory findings are anatomical, physiological, or
psychological phenomena which can be shown by the use of a
medically acceptable laboratory diagnostic techniques. Some
of these diagnostic techniques include chemical tests,
electrophysiological studies ..., (X-rays), and psychological
than listing the impairments she believes the ALJ failed to
find severe at step two, Plaintiff failed to argue with
sufficient specificity how those impairments were
"established by medical evidence consisting of signs,
symptoms, and laboratory findings, [and] not only by [her]
statement of symptoms." 20 C.F.R. §§ 404.1528,
416.908; see also Clemens v. Berryhill-No.
3:16-cv-02123-MC, 2018 WL 1730723, at *2 (D. Or. Apr. 10,
2018) (rejecting claimant's step two argument that
"was not argued with specificity") (citing
Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d
1155, 1162 n.2 (9th Cir. 2003) ("[I]ssues not argued
with specificity in briefing will not be addressed.")).
Moreover, the ALJ discussed at length many of the impairments
Plaintiff asserts were erroneously rejected. See Tr.
19 (noting that Plaintiff had "exhibited a constellation
of symptoms that have resulted in varying diagnosis for her
mental health conditions depending on her presentation during
different examinations" and that the ALJ
"considered all mental health symptoms regardless of
diagnosis"); Tr. 20 (discussing hip pain, carpal tunnel,
back pain, and concussions). Finally, to the extent the ALJ
erred, any error was harmless because the ALJ resolved step
two in Plaintiffs favor. See Burch, 400 F.3d at
682-83 (explaining that any error in omitting an impairment
from the severe impairments at step two is harmless where
step two is resolved in claimant's favor).
should be affirmed as to this issue.
The ALJ's step three ...