United States District Court, D. Oregon
J. Meserow Attorney for Plaintiff
J. Williams United States Attorney Renata Gowie Assistant
United States Attorney, Erin F. Highland Social Security
Administration Office of the General Counsel Attorneys for
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
Daniel D. brings this action seeking judicial review of the
Commissioner's final decision to deny disability
insurance benefits (DIB). This Court has jurisdiction under
42 U.S.C. § 405(g) (incorporated by 42 U.S.C. §
1383(c)(3)). The Court reverses the decision of the
Commissioner and remands this case for further proceedings.
applied for DIB on January 21, 2015, alleging an onset date
of May 31, 2009. Tr. 147. Plaintiff's date last insured is
December 31, 2012. Tr. 147. His application for DIB was
denied initially and on reconsideration. Tr. 151-57, 159-61.
April 19, 2017, Plaintiff appeared, with counsel, for a
hearing before an Administrative Law Judge (ALJ). Tr. 99. On
July 5, 2017, the ALJ found Plaintiff not disabled. Tr. 23.
The Appeals Council denied review. Tr. 1. In its decision,
the Appeals Council also found that additional evidence
submitted by Plaintiff did not “show a reasonable
probability that it would change the outcome of the
decision.” Tr. 2.
alleged disability based on chronic fatigue, Lyme disease,
and depression. Tr. 262. At the time of his date last
insured, he was 47 years old. Tr. 21. He has a high school
education and past relevant work as sheet metal fabricator,
cabinet installer, construction contractor, and tool rental
clerk. Tr. 21, 118.
claimant is disabled if they are 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), 1382c(a)(3)(A). Disability claims are evaluated
according to a five-step procedure. See
Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir.
2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the
ultimate burden of proving disability. Id.
first step, the Commissioner determines whether a claimant is
engaged in “substantial gainful activity.” If so,
the claimant is not disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b),
416.920(b). In step two, the Commissioner determines 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
not, the claimant is not disabled.
three, the Commissioner determines whether the claimant's
impairments, singly 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, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four.
Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant,
despite any impairment(s), has the residual functional
capacity (RFC) to perform “past relevant work.”
20 C.F.R. §§ 404.1520(e), 416.920(e). If the
claimant can perform past relevant work, the claimant is not
disabled. If the claimant cannot perform past relevant work,
the burden shifts to the Commissioner. In step five, the
Commissioner must establish that the claimant can perform
other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R.
§§ 404.1520(e) & (f), 416.920(e) & (f). If
the Commissioner meets his burden and proves that the
claimant can perform other work that exists in the national
economy, the claimant is not disabled. 20 C.F.R. §§
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity after his alleged onset date of
May 31, 2009, through his date last insured of December 31,
2012. Tr. 16. Next, at steps two and three, the ALJ
determined that Plaintiff has the following severe
impairments: “chronic fatigue syndrome, and
degenerative joint disease affecting the right knee.”
Tr. 16. However, the ALJ determined that Plaintiff's
impairments did not meet or medically equal the severity of a
listed impairment. Tr. 18. At step four, the ALJ concluded
that Plaintiff has the residual functional capacity to
perform light work “except not more than occasional
climbing.” Tr. 18. Plaintiff could not perform any of
his past relevant work, which was classified as above the
light exertional range. Tr. 21. But at step five the ALJ
found jobs that exist in significant numbers in the national
economy that Plaintiff can perform, such as mail sorter,
laundry sorter, and office cleaner. Tr. 22. Thus, the ALJ
concluded that Plaintiff is not disabled. Tr. 22-23.
may set aside the Commissioner's denial of benefits only
when the Commissioner's findings “are based on
legal error or are not supported by substantial evidence in
the record as a whole.” Vasquez v. Astrue, 572
F.3d 586, 591 (9th Cir. 2009) (internal quotation marks
omitted). “Substantial evidence means more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (internal quotation
marks omitted). The court considers the record as a whole,
including both the evidence that supports and detracts from
the Commissioner's decision. Id.;
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007). “Where the evidence is susceptible to more
than one rational interpretation, the ALJ's decision must
be affirmed.” Vasquez, 572 F.3d at 591
(internal quotation marks and brackets omitted); see
also Massachi v. Astrue, 486 F.3d 1149, 1152
(9th Cir. 2007) (“Where the evidence as a whole can
support either a grant or a denial, [the court] may not
substitute [its] judgment for the ALJ's”) (internal
quotation marks omitted).
argues that the ALJ erred by: (1) discounting Plaintiff's
subjective symptom testimony; (2) discounting the opinion of
treating physician A. Perry Hendin, MD; and (3) formulating
an RFC after rejecting the medical opinion evidence and
without further development of the record. Pl. Am. Br., ECF
18. Plaintiff also argues that a remand is warranted because
new evidence submitted to the Appeals Council undermines the
ALJ's decision. Id. This Court agrees.
New Evidence Submitted to the Appeals Council
argues that new evidence submitted to the Appeals Council
changes the weight of the evidence such that the ALJ's
decision is unsupported by substantial evidence. Pl. Am. Br.
2. “[W]hen a claimant submits evidence for the first
time to the Appeals Council, which considers that evidence in
denying review of the ALJ's decision, the new evidence is
part of the administrative record, which the district court
must consider in determining whether the Commissioner's
decision is supported by substantial
evidence.” Brewes v. Comm'r, Soc. Sec.
Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012).
Commissioner points out, some of the evidence submitted to
the Appeals Council was duplicative or outside the relevant
period. Def. Br. 4, ECF 19. Yet much of the additional
evidence is directly relevant to findings made by the ALJ in
this case. See Ward v. Colvin, No.
3:14-CV-01162-HZ, 2015 WL 5032038, at *6 (D. Or. Aug. 25,
2015) (when new evidence conflicted with evidence upon with
the ALJ relied and supported the discounted opinion of a
medical provider, the Court found that the ALJ's decision
was not supported by substantial evidence). As described
below, the new evidence includes additional records from Dr.
Hendin that contradict the reasons cited by the ALJ for
discounting Plaintiff's testimony and the opinion
evidence of Dr. Hendin. See infra Part II(D)-(C),
Part III. After considering these new records, the Court
finds that the ALJ's decision is unsupported by
Subjective Symptom Testimony
argues that the ALJ erred in discounting his subjective
symptom testimony. Pl. Am. Br. 23. The ALJ is responsible for
determining credibility. Vasquez, 572 F.3d at 591.
In assessing a claimant's testimony about subjective pain
or the intensity of symptoms, the ALJ engages in a two-step
analysis. 20 C.F.R. §§ 404.1529, 416.929. The first
stage is a threshold test in which the claimant must present
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 of this analysis, absent
affirmative evidence of malingering, the ALJ must provide
clear and convincing ...