United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE.
Carolyn P. 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 this case in
accordance with Federal Rule of Civil Procedure 73 and 28
U.S.C. § 636(c). See (Docket No. 4). For the
reasons that follow, the Commissioner's final decision is
REVERSED and this case is REMANDED.
filed an application for DIB in October 2014 and an
application for SSI in March 2015. Tr. 13, 217-18,
221-26. She alleged an amended onset date for both
applications of October 17, 2014. Tr. 13, 35-36. Her
applications were denied initially and upon reconsideration.
Tr. 113- 20, 133-43. Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”), and a hearing
was held on August 4, 2017. Tr. 29-112, 161-62. On November
15, 2017, an ALJ issued a decision finding plaintiff not
disabled within the meaning of the Act. Tr. 13-23. The
Appeals Council denied plaintiff's request for review on
September 21, 2018, making the ALJ's decision the final
decision of the Commissioner. Tr. 1-6. This appeal followed.
1964, plaintiff was 50 years old on her amended alleged onset
date and 53 years old on the date of her hearing. Tr. 37,
113. She obtained a GED, as well as some vocational business
college training, and has past relevant work as a bank
teller, administrative clerk, general clerk, and home
attendant. Tr. 21-22, 37-38, 241-42. She alleged disability
based upon arthritis, asthma, acid reflux, high blood
pressure, hypertension, neuropathy, osteoporosis, and plantar
fasciitis. Tr. 240.
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 upon 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 amended alleged onset date. Tr.
15. At step two, the ALJ found that plaintiff had had the
following severe impairments: asthma, right shoulder
degenerative joint disease with tendon tear, and status post
right knee surgery. Id.
three, the ALJ found that plaintiff did not have an
impairment or combination thereof that met or equaled a
listed impairment. Tr. 19. The ALJ found that plaintiff had
the RFC to perform light work, with the following limitations:
[She] can occasionally climb ladders, ropes or scaffolds.
[She] can occasionally crawl. [She] can occasionally reach
overhead with her dominant right arm. [She] can have
occasional exposure to vibration, and temperature and
humidity extremes. [She] can have frequent, but not
continuous, handling and fingering bilaterally. [She] can
have only occasional exposure to concentrated levels of dust,
fumes, gases, poor ventilation, and the like.
Id. Because the ALJ found that plaintiff could
perform her past relevant work as a bank teller,
administrative clerk, and general clerk, the ALJ did not
proceed to the fifth step of the sequential analysis. Tr.
21-22. The ALJ thus found plaintiff was not disabled within
the meaning of the Act. Tr. 23.
asserts the ALJ erred by: (1) failing to provide clear and
convincing reasons for rejecting her subjective symptom
testimony; (2) failing to assign any weight to the lay
witness testimony; and (3) omitting supported functional
limitations from plaintiff's 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).
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
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
(Oct. 25, 2017). If the ALJ's subjective symptom analysis
“is supported by substantial evidence in the record,
[the court] may not engage in second-guessing.”
Thomas, 278 F.3d at 959 (citation omitted).
found that, although plaintiff's impairments could
reasonably be expected to cause some of her alleged symptoms,
her statements 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 [the]
decision.” Tr. 20. The ALJ then rejected