United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane, United States District Judge
Heather R. brings this action for judicial review of a final
decision of the Commissioner of Social Security
(“Commissioner”) denying her application for
supplemental security income (“SSI”) under Title
II of the Social Security Act. This Court has jurisdiction
under 42 U.S.C. §§ 405(g) and 1383(c)(3).
alleges that the Administrative Law Judge (“ALJ”)
erred by: (1) finding that Plaintiff's mental impairments
did not meet certain listings; (2) failing to credit
Plaintiff's testimony; (3) failing to incorporate Dr.
Molly McKenna's, Ph.D., recommendations; (4) failing to
credit lay witness statements; (5) crafting Plaintiff's
residual functional capacity (“RFC”). Pl.'s
Br. 15-33, ECF No. 10. Because there is substantial evidence
in the record to support the ALJ's findings and any
errors are harmless, the Commissioner's decision is
AND FACTUAL BACKGROUND
applied for SSI on March 25, 2009, alleging disability since
June 1, 2005. Tr. 21, 143-49. Her claim was denied initially
and upon reconsideration. Tr. 21, 93-95. Plaintiff timely
requested a hearing before an ALJ and appeared before the
Honorable Rudolph Murgo on August 6, 2010. Tr. 96, 828-75.
ALJ Murgo denied Plaintiff's claim by a written decision
dated September 3, 2010. Tr. 18-30. Plaintiff sought review
from the Appeals Council and was denied on December 22, 2011,
rendering the ALJ's decision final. Tr. 1-6.
sought judicial review in this Court in civil case number
3:12-cv-00342-MA. Pl.'s Br. 1. The Court affirmed the
ALJ's decision on April 24, 2013. Tr. 599. Plaintiff
appealed this Court's decision to the U.S. Court of
Appeals for the Ninth Circuit, which remanded for additional
proceedings. Tr. 600, 574-95. Plaintiff appeared before ALJ
Murgo again on October 13, 2016 and August 24, 2017. Tr.
451-81, 432-50. ALJ Murgo denied Plaintiff's claim again
by a written decision dated October 20, 2017. Tr. 406-31. The
Appeals Council declined to assume jurisdiction on May 11,
2018, rendering the ALJ's decision on remand final. Tr.
399- 405. Plaintiff now seeks judicial review of the
ALJ's decision on remand.
was 18 years old at the time of her alleged disability onset
and 31 at the time of her last hearing. See tr. 28,
143, 450. Plaintiff completed high school and has engaged in
past relevant work as a cashier at a fast food restaurant,
gas station attendant, and landscaper. Tr. 29, 421, 834, 838,
1185. Plaintiff alleges disability due to social phobia,
fibromyalgia, and developmental, cognitive, and major
depressive disorders. Pl.'s Br. 2.
reviewing court shall affirm the Commissioner's decision
if it is based on proper legal standards and the legal
findings are supported by substantial evidence in the record.
See 42 U.S.C. § 405(g); Batson v.
Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th
Cir. 2004). “Substantial evidence is ‘more than a
mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'” Hill v.
Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting
Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir.
1997)). To determine whether substantial evidence exists, the
court reviews the administrative record as a whole, weighing
both the evidence that supports and detracts from the
ALJ's conclusion. Davis v. Heckler, 868 F.2d
323, 326 (9th Cir. 1989) (citing Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986)).
“‘If the evidence can reasonably support either
affirming or reversing,' the reviewing court ‘may
not substitute its judgment' for that of the
Commissioner.” Gutierrez v. Comm'r of Soc. Sec.
Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir.
Social Security Administration uses a five-step sequential
evaluation to determine whether a claimant is disabled. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The
burden of proof rests on the claimant for steps one through
four, and on the Commissioner for step five. Bustamante
v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001)
(citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th
Cir. 1999)). At step five, the Commissioner's burden is
to demonstrate that the claimant can make an adjustment to
other work existing in significant numbers in the national
economy after considering the claimant's RFC, age,
education, and work experience. 20 C.F.R. §
404.1520(a)(4)(v). If the Commissioner fails to meet
this burden, then the claimant is considered disabled.
Plaintiff's Mental Impairments
argues that the ALJ erred by finding that Plaintiff's
mental impairments did not equal listings 12.04 for
depressive, bipolar, and related disorders or listing 12.06
for anxiety and obsessive-compulsive disorders. Pl.'s Br.
15-25. These listings describe impairments that are severe
enough to be per se disabling. See Tackett,
180 F.3d at 1099. The plaintiff has the burden of proving
that her impairments meet all the specified medical criteria.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990). If a
claimant's impairment matches or is equivalent to a
listed impairment, she is presumed unable to work and is
awarded benefits without a determination of whether she can
actually perform prior work or other work. Id. at
532. “Listed impairments are purposefully set at a high
level of severity because ‘the listings were designed
to operate as a presumption of disability that makes further
inquiry unnecessary.'” Kennedy v. Colvin,
738 F.3d 1172, 1176 (9th Cir. 2013) (citing
Sullivan, 493 U.S. at 532).
listing 12.04 or 12.06, an individual must satisfy the
listing's paragraph A and B or A and C criteria. 20
C.F.R. Part 404, Subpt. P., App. 1, §§ 12.04 and
12.06. Plaintiff argues that her combined
impairments equal paragraphs A and C of each 12.04 and 12.06.
Pl.'s Br. 19. To meet either listing's paragraph C
criteria, an individual's mental disorder must be
“serious and persistent, ” meaning medically
documented over a period of at least two years, and there
must be evidence of:
1. Medical treatment, mental health therapy, psychosocial
support(s), or a highly structured setting(s) that is ongoing
and that diminishes the symptoms and signs of your ...