United States District Court, D. Oregon, Portland Division
Wells HARDER, WELLS, BARON & MANNING, P.C. Attorney for
J. Williams UNITED STATES ATTORNEY, Renata Gowie ASSISTANT
UNITED STATES ATTORNEY Franco L. Becia SPECIAL ASSISTANT
UNITED STATES ATTORNEY Attorneys for Defendant
OPINION & ORDER
A HERNANDEZ, UNITED STATES DISTRICT JUDGE
Daralyn B., brings this action seeking judicial review of the
Commissioner's final decision to deny disability
insurance benefits (DIB) and disabled widow's benefits
(DWB). This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g) . I reverse the Commissioner's decision and
remand for additional proceedings.
applied for DIB and DWB on August 31, 2015, alleging an onset
date of March 1, 2013. Tr. 209-23. Her applications were
denied initially and on reconsideration. Tr. 59-82, 112-21;
Tr. 83-110, 130-35. On November 27, 2017, Plaintiff appeared,
with counsel, for a hearing before an Administrative Law
Judge (ALJ). Tr. 29-58. On March 6, 2018, the ALJ found
Plaintiff not disabled. Tr. 10-28. The Appeals Council denied
review. Tr. 1-5.
alleges disability based on having chronic obstructive
pulmonary disease (COPD), congestive heart failure, back
pain, "Afib," type 2 diabetes, and memory lapse.
Tr. 237. At the time of the hearing, she was fifty-nine years
old. Tr. 35. She is a high school graduate and has past
relevant work experience as a reports analyst and a user
support analyst. Tr. 22, 35, 245-58.
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), 1382c(a)(3)(A).
claims are evaluated according to a five-step procedure.
See Valentine v. Comm'r, 574 F.3d 685, 689 (9th
Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the
ultimate burden of proving disability. Id.
first step, the Commissioner determines whether a claimant is
engaged in "substantial gainful activity." If so,
the claimant is not disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b),
416.920(b). In 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). If
not, the claimant is not disabled.
three, the Commissioner determines whether plaintiff's
impairments, singly or in combination, meet or equal
"one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Yuckert, 482
U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d).
If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four.
Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant,
despite any impairment(s), has the residual functional
capacity (RFC) to perform "past relevant work." 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can perform past relevant work, the claimant is not disabled.
If the claimant cannot perform past relevant work, the burden
shifts to the Commissioner. In step five, the Commissioner
must establish that the claimant can perform other work.
Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§
404.1520(e) & (f), 416.920(e) & (f). If the
Commissioner meets his burden and proves that the claimant is
able to perform other work which exists in the national
economy, the claimant is not disabled. 20 C.F.R. §§
one, the ALJ determined that Plaintiff met the insured status
requirements of the Social Security Act (SSA) through March
31, 2017, that she met the non-disability requirements for
DWB, and that she had not engaged in substantial gainful
activity since her alleged onset date of March 1, 2013. Tr.
15-16 Next, at step two, the ALJ determined that Plaintiff
has severe impairments of COPD, atrial fibrillation,
degenerative disc disease of the spine, and obesity. Tr.
16-18. At step three, however, the ALJ determined that her
impairments did not meet or equal, either singly or in
combination, a listed impairment. Tr. 18.
four, the ALJ concluded that Plaintiff has the RFC to perform
sedentary work as defined in 20 C.F.R. § 404.1567(a),
with the following limitations: (1) she can occasionally
climb ramps and stairs but never ladders, ropes, or
scaffolds; (2) she can frequently balance; (3) she can
occasionally stoop, kneel, crouch, and crawl; (4) she should
avoid concentrated exposure to extreme cold, fumes, odors,
dusts, gases, and poorly ventilated areas; and (5) she should
avoid even moderate exposure to hazardous machinery and
unprotected heights. Tr. 18-19. With this RFC, the ALJ
determined that Plaintiff is able to perform her past
relevant work as a report analyst and as a user support
analyst. Tr. 22-23. The ALJ then determined that Plaintiff is
not disabled. Tr. 23.
may set aside the Commissioner's denial of benefits only
when the Commissioner's findings "are based on legal
error or are not supported by substantial evidence in the
record as a whole." Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009) (internal quotation marks omitted).
"Substantial evidence means 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." Id. (internal quotation marks
omitted). The court considers the record as a whole,
including both the evidence that supports and detracts from
the Commissioner's decision. Id.;
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007). "Where the evidence is susceptible to more
than one rational interpretation, the ALJ's decision must
be affirmed." Vasquez, 572 F.3d at 591
(internal quotation marks and brackets omitted); see also
Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
("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") (internal quotation marks
argues that the ALJ erred by (1) finding her subjective
limitations testimony not fully credible; (2) rejecting the
opinion of examining psychologist Michael O'Connell,
Ph.D; (3) failing to find her somatic symptom disorder a
severe impairment at step two; (4) improperly rejecting the
testimony of a lay witness; and (5) as a result of those
errors, failing to properly assess her RFC.
is responsible for determining credibility. See
Vasquez, 572 F.3d at 591. Once a claimant shows an
underlying impairment and a causal relationship between the
impairment and some level of symptoms, clear and convincing
reasons are needed to reject a claimant's testimony if
there is no evidence of malingering. Carmickle v.
Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent
affirmative evidence that the plaintiff is malingering,
"where the record includes objective medical evidence
establishing that the claimant suffers from an impairment
that could reasonably produce the symptoms of which he
complains, an adverse credibility finding must be based on
'clear and convincing reasons'"); see also
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)
(ALJ engages in two-step analysis to determine credibility:
First, the ALJ determines whether there is "objective
medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms
alleged"; and second, if the claimant has ...