United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE
Deborah H. seeks judicial review of the final decision of the
Commissioner of the Social Security Administration
(“Commissioner”) denying her applications for
disability insurance benefits (“DIB”) under Title
II and supplemental security income (“SSI”) under
Title XVI of the Social Security Act (the “Act”).
(Docket No. 1). This Court has jurisdiction to review the
Commissioner's decision pursuant to 42 U.S.C. §
405(g). All parties have consented to allow a Magistrate
Judge to enter final orders and judgment in accordance with
Federal Rule of Civil Procedure 73 and 28 U.S.C. §
636(c). See (Docket No. 21). For the reasons that
follow, the Commissioner's decisions is REVERSED and this
case is REMANDED for further proceedings.
filed applications for DIB and SSI on October 24, 2013,
alleging a disability onset date as of March 1, 2013. Tr. 18,
172-79. Her applications were denied initially and
upon reconsideration. Tr. 65-66, 87-88. Plaintiff requested a
hearing before an Administrative Law Judge
(“ALJ”), and a hearing was held on October 12,
2016. Tr. 40-64, 130-131. On November 30, 2016, an ALJ issued
a decision finding plaintiff not disabled within the meaning
of the Act. Tr. 18-28. The Appeals Council denied
plaintiff's request for review on August 17, 2017, making
the ALJ's decision the final decision of the
Commissioner. Tr. 1-6. This appeal followed.
1966, plaintiff was 46 years old on her alleged onset date.
Tr. 26, 67. She completed at least the twelfth grade and has
past relevant work as a cosmetologist and horticultural
nursery salesperson. Tr. 26, 44, 234. She alleged disability
based on mental conditions that include bipolar 1 with severe
mania and moderate psychosis; anxiety; depression; and
posttraumatic stress disorder (“PTSD”). Tr. 233;
see also Tr. 20. Plaintiff lives with her
significant other, son, and two roommates. Tr. 43.
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
initial burden of proof rests on 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).
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.
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.
one, the ALJ found that plaintiff met the insured
requirements of the Act and had not engaged in substantial
gainful activity since her alleged onset date. Tr. 20. At
step two, the ALJ found that plaintiff had had the following
severe impairments: PTSD, bipolar I disorder, persistent
depressive disorder, generalized anxiety disorder, and
alcohol use disorder. 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. 21. The ALJ found that plaintiff had the RFC to perform a
full range of work at all exertional levels, but with the
following nonexertional limitations: she could understand,
remember, and carry out simple, routine, and repetitive
tasks; she could tolerate only occasional contact with the
public and coworkers. Tr. 23. At step four, the ALJ found
that plaintiff could not perform any past relevant work. Tr.
26. At step five, the ALJ found, based on the RFC and VE
testimony, a significant number of jobs existed such that
plaintiff could sustain employment despite her impairments.
Id. Specifically, the ALJ found plaintiff could
perform the jobs of industrial cleaner, lumber straightener,
and hand packager. Tr. 27. The ALJ thus found plaintiff was
not disabled within the meaning of the Act. Id. at
asserts the ALJ erred by: (1) failing to provide clear and
convincing reasons for rejecting her subjective symptom
testimony; (2) improperly rejecting third party witness
statements; and (3) failing to account for limitations
expressed by the examining doctor in her RFC. The Court
addresses each argument in turn.
Subjective Symptom Testimony
claimant has medically documented impairments that could
reasonably be expected to produce some degree of the symptoms
complained of, and the record contains no affirmative
evidence of malingering, “the ALJ can reject the
claimant's testimony about the severity of . . . symptoms
only by offering specific, clear and convincing reasons for
doing so.” Smolen v. Chater, 80 F.3d 1273,
1281 (9th Cir. 1996) (citation omitted). A general assertion
that the claimant is not credible is insufficient; the ALJ
must “state which . . . testimony is not credible and
what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915,
918 (9th Cir. 1993). The reasons proffered must be
“sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the
claimant's testimony.” Orteza v. Shalala,
50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).
Security Ruling (“SSR”) 16-3p clarified that ALJs
are not tasked with “examining an individual's
character” or propensity for truthfulness, and instead
must assess whether the claimant's subjective symptom
statements are consistent with the record as a whole.
See SSR 16-3p, available at 2017 WL
5180304. If the ALJ's subjective symptom analysis
“is supported by substantial evidence in the record,
[the court] may not engage in second-guessing.”
Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.
2002) (citation omitted).
found that, although plaintiff's impairments could
reasonably be expected to cause some of her alleged symptoms,
her testimony concerning the intensity, persistence, and
limiting effects of those symptoms were “not entirely
consistent with the medical evidence and other evidence in
the record for the reasons explained in [her]
decision.” Tr. 23. Plaintiff argues that the ALJ's
reasoning does not satisfy the clear-and-convincing standard
and that the ALJ failed to specify which testimony she found
not credible. Pl.'s Opening Br. 5-10 (“Pl.'s
Br.”) (Docket No. 20). The Commissioner contends the
ALJ properly rejected plaintiff's testimony because (1)
the medical evidence did not support plaintiff's
allegations; (2) plaintiff ...