United States District Court, D. Oregon
FERNANDO C. C.,  Plaintiff,
COMMISSIONER OF Social Security, Defendant.
J. MESEROW Attorney for Plaintiff
J. WILLIAMS United States Attorney RENATA GOWIE Assistant
United States AttorneyMICHAEL W. PILE Acting Regional Chief
Counsel BRETT E. ECKELBERG Special Assistant United States
Attorney Attorneys for Defendant
OPINION AND ORDER
J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE.
Fernando C. C. seeks judicial review of the final decision of
the Commissioner of the Social Security Administration (SSA)
in which the Commissioner denied Plaintiff's applications
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act. This Court has jurisdiction to review
the Commissioner's final decision pursuant to 42 U.S.C.
reasons that follow, the Court REVERSES the
decision of the Commissioner and REMANDS
this matter to the Commissioner for further administrative
December 28, 2015, Plaintiff protectively filed his
application for DIB benefits. Tr. 13, 153. Plaintiff alleges a
disability onset date of February 1, 2013. Tr. 13, 153.
Plaintiff's application was denied initially and on
reconsideration. An Administrative Law Judge (ALJ) held a
hearing on September 8, 2017. Tr. 33-58. Plaintiff and a
vocational expert (VE) testified at the hearing. Plaintiff
was represented by an attorney at the hearing.
November 16, 2017, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not
entitled to benefits. Tr. 13-28. Plaintiff requested review
by the Appeals Council. On August 23, 2018, the Appeals
Council denied Plaintiff's request to review the
ALJ's decision, and the ALJ's decision became the
final decision of the Commissioner. Tr. 1-3. See Sims v.
Apfel, 530 U.S. 103, 106-07 (2000).
September 28, 2018, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner's decision.
was born on April 23, 1980. Tr. 27, 153. Plaintiff was 37
years old on his alleged disability onset date. Plaintiff has
at least a high-school education. Tr. 27. Plaintiff has past
relevant work experience as a carpenter. Tr. 27.
alleges disability due to major depression and post-traumatic
stress disorder (PTSD). Tr. 59.
as noted, Plaintiff does not challenge the ALJ's summary
of the medical evidence. After carefully reviewing the
medical records, this Court adopts the ALJ's summary of
the medical evidence. See Tr. 19-25.
initial burden of proof rests on the claimant to establish
disability. Molina v. Astrue, 674 F.3d 1104, 1110
(9th Cir. 2012). To meet this burden, a claimant must
demonstrate his inability "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). The ALJ must
develop the record when there is ambiguous evidence or when
the record is inadequate to allow for proper evaluation of
the evidence. McLeod v. Astrue, 640 F.3d 881, 885
(9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459-60 (9th Cir. 2001)).
district 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 as a whole.
42 U.S.C. § 405(g). See also Brewes v. Comm'r of
Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is "relevant evidence that a
reasonable mind might accept as adequate to support a
conclusion." Molina, 674 F.3d. at
1110-11 (quoting Valentine v. Comm'r Soc. Sec.
Admin., 574 F.3d 685, 690 (9th Cir. 2009)). "It is
more than a mere scintilla [of evidence] but less than a
preponderance." Id. (citing Valentine,
574 F.3d at 690).
is responsible for evaluating a claimant's testimony,
resolving conflicts in the medical evidence, and resolving
ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591
(9th Cir. 2009). The court must weigh all of the evidence
whether it supports or detracts from the Commissioner's
decision. Ryan v. Comm'r of Soc. Sec, 528 F.3d
1194, 1198 (9th Cir. 2008). Even when the evidence is
susceptible to more than one rational interpretation, the
court must uphold the Commissioner's findings if they are
supported by inferences reasonably drawn from the record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir.
2012). The court may not substitute its judgment for that of
the Commissioner. Widmark v. Barnhart, 454 F.3d
1063, 1070 (9th Cir. 2006).
The Regulatory Sequential Evaluation
One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity (SGA). 20 C.F.R. § 404.1520(a)(4)(i). See
also Keyser v. Comm'r of Soc. Sec, 648 F.3d 721, 724
(9th Cir. 2011).
Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments. 20 C.F.R. §
404.1509, 404.1520(a)(4)(ii). See also Keyser, 648
F.3d at 724.
Three the claimant is disabled if the Commissioner determines
the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. 20 C.F.R.
§ 404.1520(a)(4)(iii). See also Keyser, 648
F.3d at 724. The criteria for the listed impairments, known
as Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
Commissioner proceeds beyond Step Three, she must assess the
claimant's residual functional capacity (RFC). The
claimant's RFC is an assessment of the sustained,
work-related physical and mental activities the claimant can
still do on a regular and continuing basis despite his
limitations. 20 C.F.R. § 404.1520(e). See also
Social Security Ruling (SSR) 96-8p. "A 'regular and
continuing basis' means 8 hours a day, for 5 days a week,
or an equivalent schedule." SSR 96-8p, at *1. In other
words, the Social Security Act does not require complete
incapacity to be disabled. Taylor v. Comm'r of Soc.
Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir.
2011)(citing Fair v. Bowen, 885 F.2d 597, 603 (9th
Four the claimant is not disabled if the Commissioner
determines the claimant retains the RFC to perform work he
has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
Commissioner reaches Step Five, she must determine whether
the claimant is able to do any other work that exists in the
national economy. 20 C.F.R. § 404.1520(a)(4)(v). See
also Keyser, 648 F.3d at 724-25. Here the
burden shifts to the Commissioner to show a significant
number of jobs exist in the national economy that the
claimant can perform. Lockwood v. Comm'r Soc. Sec.
Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). The
Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines (or
the grids) set forth in the regulations at 20 C.F.R. part
404, subpart P, appendix 2. If the Commissioner meets this
burden, the claimant is not disabled. 20 C.F.R. §§
One the ALJ found Plaintiff has not engaged in substantial
gainful activity since February 1, 2013, Plaintiff's
alleged disability onset date. Tr. 15.
Two the ALJ found Plaintiff has the severe impairments of
"anxiety/posttraumatic stress disorder and
depression." Tr. 15.
Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one
of the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1. Tr. 16. The ALJ found Plaintiff has the RFC to
perform a full range of work at all exertional levels with
the following nonexertional limitations: he is limited to
performing simple, repetitive, routine work with only
occasional interaction with supervisors, coworkers, and the
general public. Tr. 18.
Four the ALJ concluded Plaintiff is unable to perform his
past relevant work. Tr. 27.
Five the ALJ found Plaintiff can perform other jobs that
exist in the national economy such as janitor, floor waxer,
and cafeteria attendant. Tr. 28. Accordingly, the ALJ found
Plaintiff is not disabled. Tr. 28.
contends the ALJ erred when he failed (1) to conclude
Plaintiff’s social anxiety disorder is a medically
determinable and severe impairment at Step Two, (2) to
provide clear and convincing reasons for rejecting
Plaintiff's subjective symptom testimony, and (3) to
evaluate properly the medical opinions of Chandra M.
Oleksiewicz, M.D., and Kimberly Humann, M.D., Plaintiff's
treating psychiatrists; Kenneth Robertson, MSW, LCSW,
Plaintiff's treating social worker; Daniel Scharf, Ph.D.,
an examining psychologist; and Scott F. Kaper, Ph.D., and
Irmgard E. Friedburg, Ph.D., consultative psychologists.
The ALJ did not err at Step Two when he found
Plaintiff’s social anxiety disorder was not a severe
contends the ALJ erred at Step Two when he found
Plaintiff's social anxiety disorder was not a medically
determinable impairment, and as a ...