United States District Court, D. Oregon
JESSIE E. R.,  Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION & ORDER
AIKEN UNITED STATES DISTRICT JUDGE
Jessie Emily R, seeks judicial review of the final decision
of the Commissioner of Social Security
("Commissioner"). For the reasons set forth below,
the decision of the Commissioner is REVERSED and REMANDED for
further proceedings, BACKGROUND
filed a Title XVI application for supplemental security
income ("SSI") on March 7, 2014, alleging lifelong
disability beginning May 31, 1988, her date of birth. Tr. 15.
The application was denied initially and on reconsideration
and a hearing was held by video conference at Plaintiff's
request on February 24, 2017. Id. On April 4, 2017,
the ALJ issued a decision finding Plaintiff not disabled. Tr.
25. The Appeals Council denied review, making the ALJ's
decision the final decision of the Commissioner. Tr. 1. This
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 numbers 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 numbers 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 numbers 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, March 7, 2014. Tr. 17. The ALJ
determined Plaintiff had the following severe impairments:
epilepsy and borderline intellectual functioning.
Id. The ALJ determined Plaintiffs impairments did
not meet or equal a listed impairment. Tr. 17-19.
determined Plaintiff had the RFC to perform a full range of
work at all exertional levels but with the following
non-exertional limitations: she can have no exposure to
workplace hazards, such as unprotected heights and exposed
moving machinery; and she can perform simple, routine tasks
requiring a reasoning level of 1 or 2. Tr. 19.
noted Plaintiff was 25 years old on her application date and
has at least a high school education and is able to
communicate in English. Tr. 23. The ALJ found Plaintiff had
no past relevant work. Id. Based on her RFC, the ALJ
determined Plaintiff was able to perform work as a scrap
sorter, box maker, and bagger. Tr. 24. As a consequence, the
ALJ determined Plaintiff was not disabled, Tr. 24-25.
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); Batson 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). Variable
interpretations of the evidence are insignificant if the
Commissioner's interpretation is rational. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
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 fully and fairly
develop the record; (2) failing to provide clear and
convincing reasons for rejecting Plaintiffs subjective
symptom testimony; (3) improperly rejecting the opinion of