United States District Court, D. Oregon, Pendleton Division
OPINION AND ORDER
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
L. (“Plaintiff”) seeks judicial review of a final
decision by the Commissioner of Social Security
(“Commissioner”) denying her claim for disability
insurance benefits under Title II of the Social Security Act,
42 U.S.C. §§ 401-33, and supplemental security
income pursuant to Tile XVI of the Social Security Act. This
Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
The parties consented to full jurisdiction by a U.S.
Magistrate Judge. ECF No. 9. For the reasons set forth below,
the Court remands for the immediate calculation and award of
filed for a period of disability, disability insurance
benefits, and supplemental security income on March 23, 2017.
Tr. 242. The amended alleged onset date of disability is
February 1, 2016 (“AAOD”). Tr. 24; Pl.'s Br.
1, ECF No. 13; Def.'s Br. 2, ECF No. 16. The claims were
initially denied, and Plaintiff timely filed a request for a
hearing. Tr. 142-50, 157-63. On April 17, 2018, the
Administrative Law Judge (“ALJ”) Michele Kelley
held a video hearing between Plaintiff in Boise, Idaho, and
the ALJ in Billings, Montana. Tr. 41. On May 9, 2017, the ALJ
issued an unfavorable decision. Tr. 20. Plaintiff requested
an Appeals Council (“AC”) review on July 2, 2018.
Tr 238-40. The AC denied the request. Tr. 1. Plaintiff now
seeks judicial review of the Commissioner's decision.
definition of disability and the five-step sequential
analysis of disability is set forth in 42 U.S.C. §
423(d) and 20 C.F.R. §§ 404.1520(b)-(f),
416.920(b)-(f). At steps one through four of the sequential
inquiry, the burden of proof is on the claimant. Tackett
v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step
five, the burden shifts to the agency. Id. The
five-step sequential inquiry, as described in
Tackett, is explained below.
One: The ALJ determines whether the claimant is engaged
in substantial gainful activity. A claimant who is engaged in
such activity is not disabled. If the claimant is not engaged
in substantial gainful activity, the ALJ proceeds to evaluate
the claimant's case under step two. 20 C.F.R. §
Two: The ALJ determines whether the claimant has one or
more severe impairments. A claimant who does not have any
such impairment is not disabled. If the claimant has one or
more severe impairment(s), the ALJ proceeds to evaluate the
claimant's case under step three. 20 C.F.R. §
Three: Disability cannot be based solely on a severe
impairment. Therefore, the ALJ next determines whether the
claimant's impairment “meets or equals” one
of the presumptively disabling impairments listed in the
Social Security Administration (“SSA”)
regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A
claimant who has an impairment that meets a listing is
presumed disabled under the Act. If the claimant's
impairments are not equivalent to one of the enumerated
impairments, between the third and fourth steps the ALJ is
required to assess the claimant's residual functional
capacity (“RFC”), based on all the relevant
medical and other evidence in the claimant's record.
See 20 C.F.R. § 416.920(e). The RFC is an
estimate of the claimant's capacity to perform sustained,
work-related physical and/or mental activities on a regular
and continuing basis, despite limitations imposed by the
claimant's impairments. See 20 C.F.R. §
416.945; see also SSR 96-8p, 1996 WL 374184.
Four: The ALJ determines whether the claimant is able to
perform work he or she has done in the past. A claimant who
can perform past relevant work is not disabled. If the
claimant demonstrates he or she cannot do past relevant work,
the ALJ's evaluation of claimant's case proceeds
under step five. 20 C.F.R. §§ 416.920(e),
Five: At step five, the ALJ's's burden is to
demonstrate that the claimant can make an adjustment to other
work after considering the claimant's RFC, age,
education, and work experience. 20 C.F.R. § 416.920(g).
A claimant who cannot perform other work is disabled. If the
ALJ finds the claimant is able to do other work, the ALJ must
show that a significant number of jobs exist in the national
economy that claimant is able to do. The ALJ may satisfy this
burden through the testimony of a vocational expert
(“VE”), or by reference to the Medical-Vocational
Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the
ALJ demonstrates that a significant number of jobs exist in
the national economy that the claimant is able to perform,
the claimant is not disabled. If the ALJ does not meet the
burden, the claimant is disabled. 20 C.F.R. §
one of the sequential evaluation process, the ALJ found that
Plaintiff met the insured status requirements of the Social
Security Act through June 30, 2019. Tr. 25. The ALJ found
that Plaintiff had not engaged in substantial gainful
activity since the AAOD. Id. At step two, the ALJ
found that Plaintiff suffered from the following severe
impairments: bipolar disorder, anxiety disorder, personality
disorder, and hypersomnia. Id.
three, the ALJ determined that Plaintiff does not have an
impairment or combination of impairments that medically
equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 of the Act. Tr. 26.
The ALJ found that Plaintiff has the RFC to understand,
remember, and carry out unskilled tasks. Tr. 27. Plaintiff
can maintain attention, concentration, persistence, and pace
for eight-hour workdays. Id. Further, Plaintiff
cannot tolerate interaction with the public, no more than
occasional interaction with supervisors, and no more than
occasional interaction with coworkers. Id.
four, the ALJ determined that Plaintiff was able to perform
her past relevant work as a sample gatherer, cleaner
(housekeeping), and janitor. Tr. 32. Therefore, the ALJ held
that Plaintiff has not been under a disability as defined by
the Social Security Act at any time from September 1, 2012,
through the date of the decision. Tr. 34.
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). However,
the Court may set aside a denial of Social Security benefits
when the agency's findings are based on legal error or
are not supported by substantial evidence in the record as a
whole. Desrosiers v. Sec. of Health & Human
Serv., 846 F.2d 573, 575-76 (9th Cir. 1988) (citing
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.
1986)). 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)
(citation and internal quotations omitted); Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
1989). “The court must consider both evidence that
supports and evidence that detracts from the ALJ's
conclusion; it may not affirm simply by isolating a specific
quantum of supporting evidence.” Jones v.
Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing
Vidal v. Harris, 637 F.2d 710, 712 (9th Cir. 1981);
Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.
1975)). “Where the evidence as a whole can support
either a grant or a denial, [this Court] may not substitute
[its] judgment for the ALJ's.” Massachi v.
Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
omitted). But a decision supported by substantial evidence
must be set aside if the Commissioner did not apply the
proper legal standards in weighing the evidence and making
the decision. Reddick v. Chater, 157 F.3d 715, 720
(9th Cir. 1998).
contends that the ALJ erred in finding Plaintiff could
sustain work activities in an ordinary work setting on a
regular and continuing basis. See Pl.'s Br.
7-20, ECF No. 13. Plaintiff seeks review of the following
issues: (1) whether the ALJ erred by rejecting
Plaintiff's subjective symptoms for less than clear and
convincing reasons; (2) whether the ALJ erred in rejecting
the opinion of treating psychiatrist Dr. Steinberg; and (3)
whether the ALJ erred by failing to consider Plaintiff's
impairments in combination. Id. The Court will
address each issue in turn.
Subjective Symptom Testimony
improperly rejected Plaintiff's testimony. The ALJ found
that Plaintiff's statements regarding the intensity,
persistence, and limiting effects of her symptoms were not
entirely consistent with the medical evidence and other
evidence in the record. Id.
agency employs a two-step process to evaluate a
claimant's symptoms. Molina v. Astrue, 674 F.3d
at 1112. “First, the ALJ must determine whether there
is objective medical evidence of an underlying impairment
which could reasonably be expected to produce the pain or
other symptoms alleged.” Id. (internal
citations and quotations omitted). A plaintiff need only show
that her impairment could cause some degree of the symptom;
she need not prove the severity or degree of the symptom.
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007). The ALJ may not reject a plaintiff's
subjective testimony as to the degree of symptoms as long as
some objective evidence is produced of underlying impairment.
plaintiff presents objective evidence of impairment, the ALJ
must next find either affirmative evidence of malingering, or
give specific, clear and convincing reasons in order to
reject the claimant's testimony about the severity of the
symptoms. Id. (internal citations and quotations
omitted). “This is not an easy requirement to meet:
‘The clear and convincing standard is the most
demanding in Social Security cases.'” Garrison
v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting
Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d
920, 924 (9th Cir. 2002)). Lastly, rejection of a
claimant's credibility that amounts to little more than a
recitation of medical evidence in support of the RFC
assessment is insufficient as a matter of law. Treichler
v. Massanari, 775 F.3d 1090, 1102-03 (9th Cir. 2014);
Brown-Hunter v. Colvin, 806 F.3d 487, 501 (9th Cir.
the ALJ found that there was objective medical evidence of an
underlying impairment that could reasonably be expected to
produce Plaintiff's symptoms. Tr. 29. Next, the ALJ did
not find evidence of malingering. See Tr. 23-34.
Thus, the ALJ must have provided specific, clear and
convincing reasons for rejecting claimant's testimony.
Plaintiff argues that the ALJ failed to provide clear and
convincing reasons for discounting Plaintiff's testimony
of fatigue, anxiety, or difficulty remaining awake during the
day. See Pl.'s Br. 17, ECF No. 13. Specifically,
Plaintiff argues that sporadic completion of minimal
activities is an insufficient basis for rejecting
Plaintiff's testimony. Id. at 16.
need not vegetate in a dark room in order to be eligible for
benefits. Molina, 674 F.3d at 1112-13 (citing
Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987))
(internal quotation marks omitted). “[M]any home
activities may not be easily transferable to a work
environment” because a plaintiff at home has more
flexibility to schedule tasks, get assistance from others,
and is not held to a minimum standard of performance as she
would be at work. Orn v. Astrue, 495 F.3d 625, 639
(9th Cir. 2007); Garrison, 759 F.3d at 1016
(internal citations and quotations omitted).
cares for her companion animals, and regularly attends
doctor's appointments, counseling, church, and
occasionally book club. Tr. 313-14. However, Plaintiff stated
that she is unable to work, in part, due to her mental
impairments, including severe anxiety and panic attacks when
exposed to “everyday living experiences” (e.g.,
leaving apartment, grocery shopping, driving, filling out
forms, and interactions with people). Tr. 310, 312-13.
Plaintiff testified that she does not cook, has not been
reading for book club meetings, neglects household chores,
naps excessively, and has anxiety about leaving her home. Tr.
28, 60-63. Plaintiff states that her condition affects her
ability to think clearly, concentrate, and remember. Tr. 310.
Further, Plaintiff contends that she has sleep abnormalities
that impede her ability to function, which have worsened over
time. Tr. 310-11. Despite using ...