United States District Court, D. Oregon, Portland Division
M. EVANS Evans & Evans PC Of Attorney for Plaintiff
J. WILLIAMS United States Attorney RENATA GOWIE Assistant
United States Attorney
MICHAEL HOWARD Special Assistant United States Attorney Of
Attorney for Defendant
OPINION AND ORDER
V. ACOSTA, UNITED STATES MAGISTRATE JUDGE.
("Plaintiff) seeks judicial review of the final decision
of the Commissioner of the Social Security Administration
("Commissioner") denying her applications for
disability insurance benefits ("DIB") under Title
II and supplemental security income ("SSI") under
Title XVI of the Social Security Act (the "Act").
This court has jurisdiction to review the Commissioner's
decision pursuant to 42 U.S.C. § 405(g). All parties
have consented to allow a Magistrate Judge to enter final
orders and judgment in this case in accordance with Federal
Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). (ECF
No. 6.) Based on a careful review of the record, the
Commissioner's decision is REVERSED and this case is
REMANDED for further proceedings.
applied for DIB on May 20, 2014, and SSI on October 20, 2014,
alleging a disability onset date as of October 26, 2013. Tr.
17. Her applications were denied initially and upon
reconsideration. (Tr. 88, 97, 108, 109.) Plaintiff requested
a hearing before an Administrative Law Judge
("ALJ"), and an administrative hearing was held on
July 22, 2016. (Tr. 10, 43-87.) On March 17, 2017 an ALJ
issued a decision finding Plaintiff not disabled within the
meaning of the Act. (Tr. 17-27.) The Appeals Council denied
Plaintiffs request for review on February 9, 2017, making the
ALJ's decision the final decision of the Commissioner.
(Tr. 1-6.) This appeal followed.
1958, Plaintiff was 55 years old on the alleged onset date.
(Tr. 89.) She has past relevant work as an office manager and
medical secretary. (Tr. 22, 26.) Plaintiff alleged disability
based upon balance issues, memory issues, depression, panic
attacks, anxiety, and shakiness. (Tr. 257.)
court must affirm the Commissioner's decision if it is
based on proper legal standards and the findings are
supported by substantial evidence in the record. Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial
evidence is "more than a mere scintilla. It 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) (quoting Consol.
Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The
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). "Where the evidence as a whole can support either
a grant or a denial, [a court] may not substitute [its]
judgment for the ALJ's." Massachi v.
Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
initial burden of proof rests upon the claimant to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the claimant must
demonstrate an "inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to
last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A).
Commissioner has established a five-step sequential process
for determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140(1987);20C.F.R.
§§404.1520, 416.920. At step one, the Commissioner
determines whether the claimant is engaged in
"substantial gainful activity." Yuckert,
482 U.S. at 140; 20 C.F.R. §§ 404.1520(b),
416.920(b). If so, she is not disabled.
two, the Commissioner evaluates 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). If the claimant
does not have a severe impairment, she is not disabled.
three, the Commissioner determines whether the claimant's
impairments, either individually or in combination, meet or
equal "one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Yuckert, 482
U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d).
If so, she is presumptively disabled; if not, the
Commissioner proceeds to step four. Yuckert, 482
U.S. at 141.
four, the Commissioner determines whether the claimant can
still perform "past relevant work." 20 C.F.R.
§§ 404.1520(f), 416.920(f). If the claimant can
perform past relevant work, she is not disabled; if she
cannot, the burden shifts to the Commissioner.
five, the Commissioner must establish the claimant can
perform other work existing in significant numbers in the
national or local economy. Yuckert, 482 U.S. at
141-42; 20 C.F.R. §§ 404.1520(g), 416.920(g). If
the Commissioner meets this burden, the claimant is not
disabled. 20 C.F.R. §§404.1566, 416.966.
performed the sequential analysis, as noted above. At step
one, the ALJ found Plaintiff had not engaged in substantial
gainful activity since the alleged onset date and met the
insurance requirements of the Act. (Tr. 19.) At step two, the
ALJ determined Plaintiff had the following severe
impairments: dysthymic disorder/depressive disorder and
anxiety disorder. (Id.) At step three, the ALJ found
Plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed
impairment. (Tr. 20.)
next determined Plaintiff had the residual functional
capacity ("RFC") to perform a full range of work at
all exertional levels with the following non-exertional
She can perform simple, routine tasks defined as no greater
than reasoning level 2; she is able to perform work that does
not require public contact; she is able to have occasional,
superficial contact with co-workers and occasional contact
(Tr. 22.) At step four, the ALJ determined that Plaintiff was
unable to perform her past relevant work. (Tr. 25.) At step
five, the ALJ found, based on the RFC and the vocational
expert ("VE") testimony, a significant number of
jobs existed in the national and local economy such that
Plaintiff could sustain employment despite her impairments.
(Tr. 26-27.) Specifically, the ALJ found Plaintiff could
perform the jobs of "production assembler" and
"assembler of electrical accessories I." (Tr.27.)
argues the ALJ erred by: (1) failing to provide clear and
convincing reasons for rejecting her subjective symptom
testimony; and (2) improperly rejecting the medical opinions
of James Powell, Psy.D., and Jennifer Reffel, Psychiatric
Mental Health Nurse Practitioner ("PMHNP"); and (3)
failing to account for her moderate limitation in
concentration, persistence, and pace in the RFC.
Plaintiffs Subjective Symptom Testimony
contends the ALJ failed to provide clear and convincing
reasons for rejecting her subjective symptom testimony. To
determine whether a claimant's testimony regarding
subjective pain or symptoms is credible, an ALJ must perform
two stages of analysis. Trevizo v. Berryhill, 871
F.3d 664, 678 (9th Cir. 2017); 20 C.F.R. §§
404.1529, 416.929. The first stage is a threshold test in
which the claimant must produce objective medical evidence of
an underlying impairment that could reasonably be expected to
produce the symptoms alleged. Molina v. Astrue, 674
F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v.
Astrue,533 F.3d 1035, 1039 (9th Cir. 2008). At the
second stage, absent affirmative evidence that the claimant
is malingering, the ALJ must provide clear and convincing
reasons for ...