United States District Court, D. Oregon
OPINION & ORDER
McSHANE, DISTRICT JUDGE:
Denise C. seeks judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”).
The decision of the Commissioner is based on proper legal
standards and supported by substantial evidence and so the
decision is AFFIRMED and this case is DISMISSED.
February 6, 2014, Plaintiff filed a Title II application for
a period of disability and disability insurance benefits and
a Title XVI application for supplemental security income
alleging disability beginning February 9, 2010. Tr. 13. The
claims were denied initially and upon reconsideration.
Id. At Plaintiff's request, a hearing was held
before an administrative law judge (“ALJ”) on
December 20, 2016. Id. On May 4, 2017, the ALJ
issued a decision finding Plaintiff not disabled. Tr. 27. The
Appeals Council denied Plaintiff's request for review,
making the ALJ's decision the final decision of the
Commissioner. Tr. 1. This appeal followed.
claimant is disabled if he or she is 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). “Social Security Regulations set out a
five-step sequential process for determining whether an
applicant is disabled within the meaning of the Social
Security Act.” Keyser v. Comm'r, 648 F.3d
721, 724 (9th Cir. 2011).
The five-steps are: (1) Is the claimant presently working in
a substantially gainful activity? (2) Is the claimant's
impairment severe? (3) Does the impairment meet or equal one
of a list of specific impairments described in the
regulations? (4) Is the claimant able to perform any work
that he or she has done in the past? and (5) Are there
significant numbers of jobs in the national economy that the
claimant can perform?
Id. at 724-25; see also Bustamante v.
Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Bustamante, 262 F.3d at 953. The Commissioner bears
the burden of proof at step five. Id. at 953-54. At
step five, the Commissioner must show that the claimant can
perform other work that exists in significant numbers in the
national economy, “taking into consideration the
claimant's residual functional capacity, age, education,
and work experience.” Tackett v. Apfel, 180
F.3d 1094, 1100 (9th Cir. 1999). If the Commissioner fails to
meet this burden, the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If,
however, the Commissioner proves that the claimant is able to
perform other work existing in significant numbers in the
national economy, the claimant is not disabled.
Bustamante, 262 F.3d at 953-54.
performed the sequential analysis. At step one, the ALJ found
Plaintiff had not engaged in substantial gainful activity
since the alleged onset date, February 9, 2010. Tr. 15. The
ALJ determined Plaintiff had the following severe
impairments: degenerative disc disease; right carpal tunnel
system status post release; left knee medial meniscus tear
status post repair; breast cancer; irritable bowel syndrome;
anxiety; and somatoform disorder. Id. The ALJ
determined Plaintiff's impairments did not meet or equal
a listed impairment. Tr. 16.
determined Plaintiff had the RFC to perform a range of
sedentary work, “except she is limited to low stress
unskilled work due to her mental health issues.” Tr.
noted Plaintiff was 40 years old on the alleged onset date
and has at least a high school education and is able to
communicate in English. Tr. 26. The ALJ found Plaintiff is
unable to perform past relevant work. Id. Based on
her RFC, the ALJ determined Plaintiff was able to perform
“nearly all unskilled sedentary positions in the
national economy.” Tr. 27. As a consequence, the ALJ
determined Plaintiff was not disabled. Id.
district court must affirm the Commissioner's decision if
the decision is based on proper legal standards and the legal
findings are supported by substantial evidence in the record.
Batson v. Comm'r, 359 F.3d 1190, 1193 (9th Cir.
2004). Substantial evidence “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) (citation and internal quotation
marks omitted). In reviewing the Commissioner's alleged
errors, this 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).
the evidence before the ALJ is subject to more than one
rational interpretation, courts must defer to the ALJ's
conclusion. Batson, 359 F.3d at 1198 (citing
Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.
1995)). A reviewing court, however, cannot affirm the
Commissioner's decision on a ground that the agency did
not invoke in making its decision. Stout v.
Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006).
Finally, a court may not reverse an ALJ's decision on
account of an error that is harmless. Id. at
1055-56. “[T]he burden of showing that an error is
harmful normally falls upon the party attacking the
agency's determination.” Shinseki v.
Sanders, 556 U.S. 396, 409 (2009).
alleges the ALJ erred by (1) failing to include fibromyalgia
among Plaintiff's severe impairments; (2) improperly
discounting Plaintiff's subjective symptom testimony; and
(3) improperly rejecting the “other” medical
source opinion of Plaintiff's treating physician's