United States District Court, D. Oregon
Katherine Eitenmiller HARDER, WELLS, BARON, & MANNING,
P.C. Attorney for Plaintiff.
Gowie Assistant United States Attorney, Michael Howard Social
Security Administration Office of the General Counsel
Attorneys for Defendant.
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
Tanya P. brings this action for judicial review of the
Commissioner’s final decision denying her application
for Supplemental Security Income (“SSI”). This
Court has jurisdiction under 42 U.S.C. § 405(g)
(incorporated by 42 U.S.C. § 1382(c)(3)). The
Commissioner’s decision is reversed and remanded for
immediate payment of benefits.
applied for SSI on December 12, 2011, alleging disability as
of August 1, 2001. Tr. 465. Plaintiff amended her onset date to
December 12, 2011, at the hearing. Tr. 854. Her application
was denied initially and on reconsideration. Id.
Plaintiff appeared, with counsel, for a hearing on December
17, 2013, before Administrative Law Judge (ALJ) Janice Shave.
Tr. 850. On January 13, 2014, ALJ Shave found Plaintiff not
disabled. Tr. 477. On June 26, 2015, the Appeals Council
issued a decision finding Plaintiff disabled as of October 7,
2013. Tr. 478–84. The Appeals Council remanded the
matter for reconsideration of the period from December 12,
2011, through October 6, 2013. Tr. 485–88.
March 8, 2016, Plaintiff appeared at a hearing before ALJ
Katherine Weatherly. Tr. 903. On May 2, 2016, ALJ Weatherly
found Plaintiff not disabled during the relevant period. Tr.
37. The Appeals Council denied review of ALJ
Weatherly’s opinion. Tr. 9–12.
initially alleged disability based on arthritis, a stroke
suffered in 2009, hepatitis C, hernia, back and neck
problems, right shoulder pain and numbness, pain in her hip,
and “mental problems.” Tr. 39. She was 53 at the
time of her amended alleged onset date and 57 at the time of
the second administrative hearing. Tr. 39, 855, 903.
Plaintiff has a high school education but she has no past
relevant work. Tr. 36.
claimant is disabled if 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). Disability claims are evaluated according to a
five-step procedure. See, e.g., Valentine v.
Comm’r, 574 F.3d 685, 689 (9th Cir. 2009). The
claimant bears the ultimate burden of proving disability.
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. 137 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 impairment
meets or equals “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 to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can, 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.
at141–42; 20 C.F.R. §§ 404.1520(e) & (f),
416.920(e) & (f). If the Commissioner meets his burden
and proves that the claimant is able to perform other work
which exists in the national economy, the claimant is not
disabled. 20 C.F.R. §§ 404.1566, 416.966.
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity after her amended alleged onset
date of December 12, 2011. Tr. 26. Next, at step two, the ALJ
determined that Plaintiff has the following severe
impairments: “cervical degenerative disc disease with
myelopathy/cervicalgia; lumbar degenerative disc disease;
right shoulder arthralgia; anxiety disorder with aspects of
posttraumatic stress disorder (PTSD); cognitive disorder,
NOS; bipolar affective disorder; and history of polysubstance
dependence.” Tr. 27. However, at step three, the ALJ
determined that Plaintiff’s impairments did not meet or
medically equal the severity of a listed impairment.
Id. At step four, the ALJ concluded that Plaintiff
has the residual functional capacity to perform light work as
defined in 20 CFR §§ 404.1567(b) and 416.967(b)
with the following limitations:
[S]he could lift and carry 20 pounds occasionally and 10
pounds frequently, sit six hours of an eight-hour workday,
and stand and walk about six hours of an eight-hour workday.
She could occasional[ly] push and pull overhead no more than
10 pounds with the dominant right upper extremity. She could
occasionally reach in all directions on the right side. She
could never climb ladders, ropes, or scaffolds, and
frequently crouch, crawl, stoop, and kneel. She could perform
occasional flexion of the neck but must avoid repetitive and
prolonged flexion, including looking down. The claimant must
avoid even moderate exposure to workplace hazards such as
unprotected heights and moving machinery. She could have
brief, occasional, and non-transactional interaction with the
public. The claimant could understand, remember, and carry
out simple routine repetitive tasks.
Tr. 29. Plaintiff did not have past relevant work, but at
step five the ALJ found that there are jobs that exist in
significant numbers in the national economy that Plaintiff
can perform, such as “Guard, security.” Tr.
36–37. Thus, the ALJ concluded that Plaintiff is not
disabled. Tr. 37.
reviewing court must affirm the Commissioner’s decision
if the Commissioner applied proper legal standards and the
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).
“Substantial evidence” means “more than a
mere scintilla, but less than preponderance.” 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)). It is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id.
court must weigh the evidence that supports and detracts from
the ALJ’s conclusion. Lingenfelter v. Astrue,
504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The
reviewing court may not substitute its judgment for that of
the Commissioner. Id. (citing Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see
also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001). Variable interpretations of the evidence are
insignificant if the Commissioner’s interpretation is a
rational reading. Id.; see also Batson, 359 F.3d at
1193. However, the court cannot not rely upon reasoning the
ALJ did not assert in affirming the ALJ’s findings.
Bray, 554 F.3d at 1225–26 (citing SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947)).
contends that the ALJ erred by: (1) improperly discrediting
Plaintiff’s subjective symptom testimony; (2) giving
little weight to the opinion of examining licensed
psychologists, Scott Alvord, Psy.D and David Northway, Ph.D.;
(3) giving no weight to the opinion of nurse practitioner,
Nan Rich; and (4) giving partial weight to the lay witness
testimony of Plaintiff’s boyfriend. Pl. Op. Br.
6–28, ECF 17. Because the ALJ erred in the analysis of
Plaintiff’s symptom testimony, the lay witness
testimony of Plaintiff’s boyfriend, and the medical
opinions of Dr. Alvord and Dr. Northway, the Court reverses
the ALJ’s decision and remands this case for an
immediate payment of benefits.
is responsible for determining credibility. See Vasquez
v. Astrue,572 F.3d 586, 591 (9th Cir. 2009). Once a
claimant shows an underlying impairment and a causal
relationship between the impairment and some level of
symptoms, clear and convincing reasons are needed to reject a
claimant’s testimony if there is no evidence of
malingering. Carmickle v.Comm’r, 533
F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence
that the plaintiff is malingering, “where the record
includes objective medical evidence establishing that the
claimant suffers from an impairment that could reasonably
produce the symptoms of which he complains, an adverse
credibility finding must be based on ‘clear and
convincing reasons’”); see also Molina v.
Astrue,674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ engages
in two-step analysis to determine credibility: First, the ALJ
determines whether there is “objective medical evidence
of an underlying impairment which could reasonably be
expected to produce the pain or other symptoms
alleged”; and second, if ...