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Amber O. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Portland Division

September 25, 2019

AMBER O., Plaintiff,
v.
COMMISSIONER, Social Security Administration, Defendant.

          OPINION AND ORDER

          PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Amber O.[1] brings this action pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (the “Commissioner”) denying her Supplemental Security Income (“SSI”) under Title XVI of the Act. 42 U.S.C. § 1381 et seq. Plaintiff asserts one error: that the Administrative Law Judge (“ALJ”) relied on testimony from the Vocational Expert (“VE”) that conflicted with the Dictionary of Occupational Titles (“DOT”), without explaining this inconsistency. In response, “[t]he Commissioner does not dispute that the record reveals unexplained inconsistencies between the VE testimony and the [DOT], ” but argues that these inconsistences are immaterial and “do not support remand because the Medical-Vocational Guidelines apply and show that Plaintiff is not disabled.” Def. Br., at 2 (Docket No. 15). For the following reasons, the Court REVERSES the Commissioner’s decision and REMANDS for further administrative proceedings.

         PROCEDURAL BACKGROUND

         On June 11, 2015, plaintiff filed an application for SSI, with a protective filing date of May 1, 2015, and alleging a disability onset of May 1, 2015. Tr. 15, 146.[2] Her claim was denied initially on September 10, 2015, and upon reconsideration on December 29, 2015. Tr. 83, 90. On February 3, 2016, plaintiff filed a written request for hearing, which was held August 22, 2017, before ALJ Robert F. Campbell. Tr. 33-54, 93-95. Plaintiff appeared and testified, represented by counsel; a vocational expert (“VE”) also testified. Id. On November 15, 2017, the ALJ issued a decision finding plaintiff not disabled under the Act and denying benefits. Tr. 12-32. On January 16, 2018, plaintiff requested Appeals Council review of the ALJ’s decision, which was denied August 6, 2018. Tr. 1, 145. Plaintiff then sought review before this Court.[3]

         FACTUAL BACKGROUND

         Plaintiff was born in 1982. Tr. 28. She has an eighth-grade education and has been unsuccessful in trying to obtain a GED. Tr. 40. She has limited past work experience in fast food service and in childcare. Tr. 178. She suffers from diabetes, neuropathy, hepatitis, bipolar disorder, posttraumatic stress disorder (“PTSD”), back pain, and fibromyalgia. Tr. 285, 414, 455-57, 507, 547. Plaintiff is married and has three children. Tr. 38.

         LEGAL STANDARD

         The 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) (quotation omitted). The 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). “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.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court “must uphold the ALJ’s decision where the evidence is susceptible to more than one rational interpretation”). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

         The 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).

         The Commissioner has established a five-step process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). At 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). A severe impairment is one “which significantly limits [the claimant’s] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) & 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner determines whether the impairments meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141.

         At this point, the Commissioner must evaluate medical and other relevant evidence to determine the claimant’s “residual functional capacity” (“RFC”), an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). At the fourth step, the Commissioner determines whether the claimant can perform “past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         THE ALJ’S DECISION

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the application date. Tr. 17. At step two, the ALJ found that plaintiff had these severe impairments: diabetes with neuropathy, hepatitis, bipolar disorder, and PTSD. Id. At step three, the ALJ found that plaintiff did not have an impairment or combination thereof that met or equaled a listed impairment. Tr. 18. The ALJ found that plaintiff had the RFC to perform sedentary work, with limitations on sitting and standing, as well as other exertional limitations, and with a limitation to “simple routine work.” Tr. 20. At step four, the ALJ found that plaintiff had no past relevant work. Tr. 25. At step five, the ALJ found that plaintiff could successfully adjust to other jobs that exist in significant ...


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