United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
YIM YOU UNITED STATES MAGISTRATE JUDGE
Angela M. seeks judicial review of the denial of Title II
disability insurance benefits by the Commissioner of Social
Security (“Commissioner”). This court has
jurisdiction to review the Commissioner's final decision
pursuant to 42 U.S.C. §§ 405(g) and 1383(g)(3). For
the reasons set forth below, the Commissioner's decision
is REVERSED and REMANDED for the immediate award of benefits.
protectively filed a Title II application for disability
insurance benefits on November 21, 2014, alleging a
disability onset date of March 28, 2013. Tr. 209. Her date
last insured is December 31, 2015. Tr. 16. The Commissioner
denied plaintiff's claim on April 9, 2015, and again upon
reconsideration on July 10, 2015. Tr. 16. Plaintiff filed a
written request for a hearing on August 4, 2015, and appeared
for a hearing before Administrative Law Judge
(“ALJ”) Allen G. Erickson, on August 4, 2017. Tr.
47. After receiving testimony from plaintiff and a vocational
expert (“VE”), Francene M. Geers, the ALJ issued
a decision, finding plaintiff not disabled within the meaning
of the Act. Tr. 16. The Appeals Council denied
plaintiff's request for review on November 24, 2018, and
plaintiff filed her complaint with this court on December 12,
2018. Tr. 1. The ALJ's decision is the Commissioner's
final decision and subject to review judicial review by this
court. 42 U.S.C. § 405(g); 20 C.F.R. § 422.210.
reviewing 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. 42 U.S.C.
§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911
(9th Cir. 2007). This court must weigh the evidence that
supports and detracts from the ALJ's conclusion and
“‘may not affirm simply by isolating a specific
quantum of supporting evidence.'” Garrison v.
Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007)). This court may not substitute its judgment for
that of the Commissioner when the evidence can reasonably
support either affirming or reversing the decision. Parra
v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead,
where the evidence is susceptible to more than one rational
interpretation, the Commissioner's decision must be
upheld if it is “supported by inferences reasonably
drawn from the record.” Tommasetti v. Astrue,
533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see
also Lingenfelter, 504 F.3d at 1035.
is the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
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 engages in a five-step sequential
inquiry to determine whether a claimant is disabled within
the meaning of the Act. 20 C.F.R. §§ 404.1520,
416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114
(9th Cir. 2006) (discussing Tackett v. Apfel, 180
F.3d 1094, 1098-99 (9th Cir. 1999)).
one, the ALJ found that plaintiff did not engage in
substantial gainful activity from her alleged onset date of
March 28, 2013, through her date last insured of December 31,
2015. Tr. 18. At step two, the ALJ determined that plaintiff
suffered from the following severe medical conditions:
multiple sclerosis, obesity, bipolar disorder, anxiety
disorder, and panic disorder. Tr. 18.
three, the ALJ found plaintiff did not have an impairment or
combination of impairments that met or medically equaled a
listed impairment. Tr. 19. The ALJ next assessed
plaintiff's residual functional capacity
(“RFC”) and determined that she could perform
sedentary work as defined in 20 C.F.R. 404.1567(a), with the
She was unable to climb ladders, ropes, or scaffolds. She was
able to climb ramps and stairs occasionally. She was able to
balance, stoop, kneel, crouch, and crawl occasionally. She
was able to tolerate occasional exposure to hazards,
vibration, and extreme temperatures and humidity. She was
able to understand, remember, and apply short and simple
instructions while performing routine tasks in an environment
not involving fast-paced production. She was able to make
simple decisions. She was able to have occasional interaction
with the general public.
four, the ALJ found plaintiff was unable to perform her past
relevant work as a middle school teacher. Tr. 34.
five, the ALJ found that considering plaintiff's age,
education, work experience, and RFC, she could perform jobs
that existed in significant numbers in the national economy,
including addresser, cutter-and-paster, and surveillance
system monitor. Tr. 35. Thus, the ALJ concluded that
plaintiff was not disabled at any time from March 28, 2013,
the alleged onset date, through December 31, 2015, the date
last insured. Id.
contends that the ALJ erroneously rejected her subjective
symptom testimony, the opinion of her treating psychiatrist,
and her mother's testimony. Plaintiff also contends that
the Commissioner failed to meet his burden at step five.
Subjective Symptom Testimony
two-step process is employed for evaluating a claimant's
testimony regarding the severity and limiting effect of the
claimant's symptoms. Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009). “First, the ALJ must
determine whether the claimant has presented objective
medical evidence of an underlying impairment ‘which
could reasonably be expected to produce the pain or other
symptoms alleged.'” Lingenfelter v.
Astrue, 504 F.3d at 1036 (quoting Bunnell v.
Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)).
When doing so, “the claimant need not show that her
impairment could reasonably be expected to cause the severity
of the symptom she has alleged; she need only show that it
could reasonably have caused some degree of the
symptom.” Smolen v. Chater, 80 F.3d 1273, 1282
(9th Cir. 1996).
if the claimant meets this first test, and there is no
evidence of malingering, ‘the ALJ can reject the
claimant's testimony about the severity of [the
claimant's] symptoms only by offering specific, clear and
convincing reasons for doing so.'”
Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). 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). If the
“ALJ's credibility finding 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
March 28, 2016, the Commissioner superseded Social Security
Ruling (“SSR”) 96-7p, governing the assessment of
a claimant's “credibility, ” and replaced it
with SSR 16-3p. See SSR 16-3p, available
at2016 WL 1119029. SSR 16-3p eliminates the reference to
“credibility, ” clarifies that “subjective
symptom evaluation is not an examination of an
individual's character, ” and requires the ALJ to
consider all of the evidence in an individual's record
when evaluating the intensity and persistence of symptoms.
Id. at *1-2. The ALJ must examine “the entire
case record, including the objective medical evidence; an
individual's statements about the intensity, persistence,
and limiting effects of symptoms; statements and other
information provided by medical sources and other persons;
and any other relevant evidence in the individual's case
record.” Id. at *4.
found that plaintiff's “severe medically
determinable impairments could reasonably be expected to
cause the alleged symptoms, ” and did not find that she
was malingering. Tr. 22. However, the ALJ ultimately
concluded that plaintiff's “statements concerning
the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical
evidence and other evidence in the record[.]”
argues that the ALJ's “twelve-page list of evidence
. . . extracted from the record, without any analysis, . . .
followed . . . [by] a single paragraph of vague, conclusory
and unexplained reasons for rejecting an unidentified
selection of Plaintiff's reported limitations, ” is
insufficient for the court to determine “which of [her]
reported symptoms the ALJ rejected and why.” Pl. Br. 9,
11, ECF #12. Plaintiff contends that “the ALJ never
identified which symptoms were reasonably related to the
medically determinable impairments he had identified, or
which testimony he found not to be credible.”
Id. at 12. Plaintiff cites Brown-Hunter v.
Colvin, 806 F.3d 487, 494 (9th Cir. 2015), and
Treichler v. Comm'r of Soc. Sec. Admin., 775
F.3d 1090, 1102 (9th Cir. 2014), in support.
Brown-Hunter, the ALJ “did not specifically
identify any . . . inconsistencies” between the
claimant's testimony and the record, but instead
“simply stated her non-credibility conclusion and then
summarized the medical evidence supporting her RFC
determination.” 806 F.3d at 494. The Ninth Circuit held
that, “[a]lthough the ALJ summarized a significant
portion of the administrative record in support of her RFC
determination, providing a summary of medical evidence in
support of a residual functional capacity finding is not the
same as providing clear and convincing reasons for
finding the claimant's symptom testimony not
credible.” Id. (emphasis in original).
“Although the ALJ's analysis need not be extensive,
the ALJ must provide some reasoning in order for [the court]
to meaningfully determine whether the ALJ's conclusions
were supported by substantial evidence.” Id.
“To support a lack of credibility finding, the ALJ [is]
required to ‘point to specific facts in the record
which demonstrate that [the claimant] is in less pain than
she claims.'” Vasquez, 572 F.3d at 592
(quoting Dodrill, 12 F.3d at 918).
Treichler, the Ninth Circuit explained that
“to ensure [judicial] review is meaningful, . . . we
require the ALJ to ‘specifically identify the testimony
[from a claimant] she or he finds not to be credible and . .
. explain what evidence undermines the testimony.'”
775 F.3d at 1102 (quoting Holohan v. Massanari, 246
F.3d 1195, 1208 (9th Cir. 2001)). “That means
‘[g]eneral findings are insufficient.'”
Id. (quoting Lester v. Chater, 81 F.3d 821,
834 (9th Cir. 1995)). However, any error by the ALJ is
harmless “if the agency's path may reasonably be
discerned, ” even if the agency “explains its
decision with less than ideal clarity.” Id. at
1099 (quoting Alaska Dep't of Envtl. Conserv. v.
EPA, 540 U.S. 461, 497 (2004)) (internal quotation marks
in crafting the RFC, the ALJ first recited a lengthy and
detailed summary of plaintiff's claimed symptoms:
The claimant alleged in her initial disability reports that
she was limited in her ability to work due to bipolar, mania,
depression, suicidal thoughts, rapid cycling, anxiety,
cognitive issues, headache, delayed sleep phase disorder,
MTHER gene mutation, and cervical radicular pain (lE; 3E2).
She alleged symptoms of sleep disturbance; problems with
concentration, memory, thinking, guilt, worthlessness,
fatigue, loss of interest, paranoid thinking, hyperactivity,
flight of ideas, pressured speech, and distractibility; eye
pain, optic neuritis, paresthesia, muscle weakness, bladder
issues, nerve pain, muscle spasms involuntary movements, and
upper and lower extremity pain (1E).
In her Function Report-Adult, she alleged limitations in all
exertional and 11011-exertional activities (6E6). She stated
that she lived in a duplex with her family (6El). She stated
that when she was feeling well, she was able to care for her
children, ages 3 and 8, with help from her mother during the
day (6E2). She stated that her mother prepared lunch and
dinner and sometimes drove her to appointments. She alleged
problems with blow-drying her hair due to an inability to
hold up her arms and sensitivity to heat; sometimes needing
help from her husband to lift her out of the tub; and
frequent urination and urinary accidents (6E3). Otherwise,
she reported no problems with dressing, feeding herself, and
other personal care activities. She stated that she needed
reminders to pay bills and attend doctor's appointments
but needed no reminders to take medication. She reported that
she was able to prepare simple meals, do cleaning and laundry
sometimes, go out alone, and drive a car (6E3-4). She stated
that she was sometimes able to manage her personal finances,
except when fatigued or otherwise symptomatic (6E5). She
described her hobbies to include scrapbooking, reading,
television, camping, piano playing, fishing, hiking,
yardwork/gardening, and baking (6E5). She stated that she did
not engage in her hobbies often due to fatigue and pain. She
reported that once a week she spent time with others by
watching sports, playing board games or bingo, or talking.
She alleged that she was unable to lift more than 25 pounds
or walk more than 5 to 30 minutes before needing to rest
(6E6). She stated that had an average ability to follow
written instructions but needed repeating of spoken
instructions. She ...