Huskins v. Commissioner Social Security Administration
Opinion and Order - The Court REVERSES the Commissioner's decision that Ms. Huskins is not disabled and REMANDS for further proceedings consistent with this Opinion and Order. Signed on 1/10/2017 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JENNIFER JEAN HUSKINS,
Case No. 3:15-cv-02186-SI
OPINION AND ORDER
CAROLYN W. COLVIN,
Commissioner of Social Security,
Tim Wilborn, P.O. Box 370578, Las Vegas, NV, 89137. Of Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Janice E. Hebert, Assistant United States
Attorney, UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland,
OR 97204; Gerald J. Hill, Special Assistant United States Attorney, OFFICE OF THE GENERAL
COUNSEL, SOCIAL SECURITY ADMINISTRATION, 701 Fifth Avenue, Suite 2900 Mailstop 221A,
Seattle, WA 98104. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Jennifer Jean Huskins (“Plaintiff”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her application
for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Title
XVI of the Social Security Act. For the following reasons, the Court REVERSES the
Commissioner’s decision and REMANDS for further proceedings consistent with this opinion.
PAGE 1 – OPINION AND ORDER
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[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) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
A. Plaintiff’s Application
Plaintiff filed an application for DIB and SSI on February 14, 2012, alleging disability
beginning January 25, 2012. AR 39. She was 51 years old at the alleged disability onset date. Id.
The Commissioner denied the claim initially and upon reconsideration; Plaintiff thereafter
PAGE 2 – OPINION AND ORDER
requested a hearing before an Administrative Law Judge (“ALJ”). AR 129. An administrative
hearing was held on February 13, 2014, and the ALJ subsequently ruled that Plaintiff was not
disabled under the Social Security Act. AR 36-47. The Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of the Commissioner. AR 1-4.
Plaintiff now seeks judicial review of that decision.
B. The Sequential Analysis
A 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). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. §§ 404.1520(a)(4)(i),
416.920(a)(4)(i). This activity is work involving significant mental or physical duties
done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. If the
claimant is performing such work, she is not disabled within the meaning of the Act. 20
C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant’s impairment “severe” under the Commissioner’s regulations? 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is
“severe” if it significantly limits the claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous period of at least
12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe
impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the
claimant has a severe impairment, the analysis proceeds to step three.
PAGE 3 – OPINION AND ORDER
3. Does the claimant’s severe impairment “meet or equal” one or more of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled.
20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or
equal one or more of the listed impairments, the analysis continues. At that point, the ALJ
must evaluate medical and other relevant evidence to assess and determine the claimant’s
“residual functional capacity” (“RFC”). This is an assessment of work-related activities
that the claimant may still perform on a regular and continuing basis, despite any
limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant’s RFC, the
analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If
so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
If the claimant cannot perform his or her past relevant work, the analysis proceeds to step
5. Considering the claimant’s RFC and age, education, and work experience, is the claimant
able to make an adjustment to other work that exists in significant numbers in the
national economy? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot
perform such work, he or she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
PAGE 4 – OPINION AND ORDER
C. The ALJ’s Decision
The ALJ first found that Plaintiff meets the insured status requirements for DIB. AR 41.
At step one of the sequential analysis, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since her alleged disability onset date. Id. At step two, the ALJ found that
Plaintiff has the following severe impairments: “osteoarthritis of the hands, fibromyalgia, and
degenerative disc disease.” Id. At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically equals the severity of one of
the listed impairments in the regulations. Id. at 42.
The ALJ next determined Plaintiff’s RFC. The ALJ found that Plaintiff retained the
capacity to perform light work as defined in 20 C.F.R. § 416.967(b), with the following
limitations: “She should never climb ladders, ropes, or scaffolds; she should not work at
unprotected heights or around hazardous machinery; she can frequently climb ramps and stairs;
she can frequently stoop, crouch, kneel, and crawl; and she can frequently finger and handle.”
AR 43. At this step, the ALJ assigned “[l]ittle weight” to testimony given by Plaintiff, her sister,
and her daughter and “[s]ome weight” to the opinions of state agency medical consultants.
AR 45-46. At step four, the ALJ found Plaintiff “capable of performing past relevant work as a
security guard, auction assistant, telemarketer, process server and bank clerk.” AR 46. Because
the ALJ had found that Plaintiff can perform past relevant work, the ALJ found that she is not
disabled. AR 47.
Plaintiff argues the ALJ erred by: (A) failing to give clear and convincing reasons for
rejecting Plaintiff’s testimony; (B) failing to give germane reasons for rejecting lay witness
testimony; (C) finding that Plaintiff’s impairments do not “equal” a listed impairment;
PAGE 5 – OPINION AND ORDER
(D) finding that Plaintiff could perform her past relevant work; and (E) failing to include
Plaintiff’s limitations in the vocational hypothetical and RFC finding.
A. Plaintiff’s Credibility
Plaintiff argues that the ALJ improperly rejected her symptom testimony. The
Commissioner responds that the ALJ provided sufficient reasons for rejecting Plaintiff’s
symptom testimony, namely inconsistencies among claimant’s statements and conflicts between
claimant’s statements and the medical evidence.
The ALJ engages in a two-step analysis when assessing the credibility of a claimant’s
symptom testimony. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). The ALJ must first
determine if there exists “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 1028, 1036 (9th Cir. 2007). If such evidence exists and there is no evidence of
malingering, “then the ALJ must give specific, clear and convincing reasons in order to reject the
claimant’s testimony about the severity of symptoms.” Molina, 674 F.3d at 1112 (citation and
quotation marks omitted). For example, an ALJ may reject a claimant’s symptom testimony
based on inconsistencies in the claimant’s testimony. Thomas v. Barnhart, 278 F.3d 947, 958-59
(9th Cir. 2002). An ALJ may also reject a claimant’s symptom testimony when it is inconsistent
with the medical evidence. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th
Cir. 2008). Still, “[o]ccasional symptom-free periods—and even the sporadic ability to work—
are not inconsistent with disability.” Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995); see also
Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (“One does not need to be ‘utterly
incapacitated’ in order to be disabled.”). Furthermore, an ALJ may not discredit a claimant’s
subjective symptom testimony solely on the basis that no objective medical evidence supports
that testimony. Burch, 400 F.3d at 681; Light v. SSA, 119 F.3d 789, 792 (9th Cir. 1997).
PAGE 6 – OPINION AND ORDER
The ALJ rejected Plaintiff’s report of right hip arthritis, neck and upper back pain, and
falls based on a lack of objective medical evidence supporting those claims. AR 45. But a lack of
objective medical evidence alone is an insufficient reason to reject Plaintiff’s subjective
symptom statements. Burch, 400 F.3d at 681; Light, 119 F.3d at 792. Additionally, the record
contains numerous instances where Plaintiff complained of hip, neck, and upper back pain and
falls. See AR 338 (noting that Plaintiff “has struggled with back pain on and off” since her motor
vehicle accident in 1997); 348 (listing cervicalgia (neck pain) in Plaintiff’s active problem
list); 354 (indicating that Plaintiff’s “chief complaint” was of “widespread pain throughout her
back and the right side of her body from the neck down to the foot” beginning following her
1997 motor vehicle accident); 365 (listing cervicalgia in Plaintiff’s active problem list); 423
(MRI of the brain for “[u]nexplained ataxia and falls”); 453-54 (noting Plaintiff has “known
cervicalgia,” was “sitting in guarded position” during the exam, and that her “[p]ain [is] not well
controlled”); 441 (noting that Plaintiff complaints of “right-sided hip pain” that has been
“ongoing . . . for at least the last couple of years” and “[a]lso complains of fall at times”).
Therefore, the ALJ erred by rejecting Plaintiff’s symptom testimony regarding right hip arthritis,
neck and upper back pain, and falls without providing a clear and convincing reason.
With regard to her hand pain, the ALJ rejected Plaintiff’s symptom statements as
inconsistent with and unsupported by the objective medical evidence. AR 45-46. The ALJ points
to medical records reflecting improvement in hand function following surgery and reports made
by Plaintiff regarding expected and actual improvement of her pain following surgery. AR 45.
But brief improvement in Plaintiff’s symptoms is “not inconsistent with disability.” Lester, 81
F.3d at 833. Although the medical evidence reflects some improvement in Plaintiff’s symptoms
following her hand surgery, that relief was short-lived. Plaintiff’s subjective pain complaints and
PAGE 7 – OPINION AND ORDER
treatment of her pain following surgery are well documented in the medical evidence. See
AR 427 (Plaintiff has been “complaining [of] bilateral thumb pain for about 6 years, right more
symptomatic than left. . . . She had tried previous cortisone injections and braces with temporary
pain relief.”); 436 (noting Plaintiff’s “complaints of bilateral thumb pain that has been going on
for about 6 years . . . and is exacerbated by any hand activity” and that Plaintiff reports
“numbness and tingling in the right hand”); 448 (noting “[o]steoarthritis of hand, well
documented” in the assessment section of progress notes); 460 (diagnosing Plaintiff with arthritis
of the right acromioclavicular joint); 461 (noting Plaintiff’s reports of increased pain several
weeks after her second surgery).
Additionally, that a brief improvement of symptoms is not indicative of full recovery is
particularly true for fibromyalgia, which Plaintiff was diagnosed with by state agency medical
consultants. Id. at 98-101, 105, 114, 124, 134. “[T]he fact that Plaintiff’s pain ‘waxed and
waned’ is not a clear and convincing reason for discrediting Plaintiff’s pain testimony. In fact,
the fluctuations in pain described by Plaintiff are consistent with a diagnosis of fibromyalgia.”
Nunn v. Astrue, 2012 WL 442900, at *5 (D. Or. Feb. 9, 2012); see also Neisinger v. Colvin, 2016
WL 2866260, at *4 (W.D. Wash. May 17, 2016) (“Social Security Administration rulings
recognize the longitudinal record of an individual’s symptoms is important in fibromyalgia
cases, as ‘the symptoms of [fibromyalgia] can wax and wane so that a person may have bad days
and good days.’” (quoting Social Security Rule (“SSR”) 12-2p, available at 2012 WL 3104869
(July 25, 2012))); Schooley v. Colvin, 2015 WL 1062029, at *7 (D. Ariz. Mar. 11, 2015) (“[T]he
symptoms of [fibromyalgia] can wax and wane so that a person may have bad days and good
days.”); Simington v. Astrue, 2011 WL 1261298, at *4 (D. Or. Feb. 23, 2011) (“Fibromyalgia
pain can fluctuate and medications and self-help measures may help lessen the severity of the
PAGE 8 – OPINION AND ORDER
symptoms, but there will still be days that are worse than others.”). Plaintiff’s longitudinal record
reveals that she has suffered from her complained of symptoms dating back to 1998 following a
motor vehicle accident. See AR 53-69.1 For example, medical records from January of 1998
indicate that Plaintiff suffered from “tenderness of the trapezial crest of the shoulder on the right
and a tender area over the upper pull of the scapula” and tenderness of the “paraspinal muscles of
the neck on the right side.” Id. at 53. Medical records from May 1998 note that although
Plaintiff’s symptoms at first improved with treatment, she returned with “more pain in the
shoulder, neck and upper back” and experienced “tingling sensations down the arm.” Id. at 66.
Plaintiff’s ongoing complaints, with sporadic improvement, are consistent with her diagnosis of
fibromyalgia. Accordingly, the ALJ failed to provide clear and convincing reasons for rejecting
Plaintiff’s symptom testimony.
B. Lay Witness Testimony
Plaintiff argues that the ALJ improperly rejected the lay witness testimony of Plaintiff’s
sister and daughter. Plaintiff contends that the ALJ’s reasons for rejecting the witnesses’
testimony—that the testimony is not supported by medical evidence and is undermined by the
witnesses’ possible secondary gain—are not germane reasons to discount their testimony. The
These records were submitted by Plaintiff on July 20, 2014, after the ALJ issued his
decision. AR 325-28. This evidence was before the Appeals Council when it made its decision,
issued September 29, 2015; therefore, it became part of the record that this Court must consider.
See Muraco v. Colvin, 2015 WL 437791, at *6 (D. Or. Feb. 3, 2015) (“District courts must
consider additional evidence submitted to the Appeals Council when the Appeals Council
considers the new evidence in deciding whether to review a decision of the ALJ. The new
evidence ‘becomes part of the administrative record, which the district court must consider when
reviewing the Commissioner’s final decision for substantial evidence.’) (quoting Brewes v.
Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012)).
PAGE 9 – OPINION AND ORDER
The Commissioner may “use evidence from other sources to show the severity of [the
claimant’s] impairment(s) and how it affects [the claimant’s] ability to work,” including from
relatives. 20 C.F.R. §§ 404.1513(d)(4), 416.913(d)(4). “Lay testimony as to a claimant’s
symptoms is competent evidence that an ALJ must take into account, unless he or she expressly
determines to disregard such testimony and gives reasons germane to each witness for doing so.”
Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). “[R]egardless of whether they are interested
parties, ‘friends and family members in a position to observe a claimant’s symptoms and daily
activities are competent to testify as to [his or] her condition.’” Valentine v. Comm’r Soc. Sec.
Admin., 574 F.3d 685, 694 (9th Cir. 2009) (quoting Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th
Cir. 1993)). But “evidence that a specific spouse exaggerated a claimant’s symptoms in order to
get access to his disability benefits, as opposed to being an ‘interested party’ in the abstract,
might suffice to reject that spouse’s testimony.” Id.
Here, the ALJ gave “[l]ittle weight” the lay witness testimony provided by Plaintiff’s
sister, Susan Huskins, and Plaintiff’s daughter, Jennifer Kellon. AR 46. The ALJ noted that the
testimony was “undermined by possible secondary gain” because both witnesses had provided
financial assistance to Plaintiff in the past. Id. From that past assistance, the ALJ inferred that
“[i]f the claimant were to received disability payments, [the lay witnesses] would also benefit
financially and this factor calls into question the reliability of [their] statements.” Id. The Court
rejects this inference. There is no evidence in the record that Plaintiff’s sister and daughter
testified in order to get money from Plaintiff or avoid having to provide monetary assistance to
Plaintiff in the future. The record simply reflects that they were able to provide financial
assistance to Plaintiff in the past.
PAGE 10 – OPINION AND ORDER
In Smolen v. Chater, the ALJ rejected testimony given by family members because they
were “understandably advocates, and biased.” 80 F.3d 1273, 1289 (9th Cir. 1996). The court
found that this was not a germane reason sufficient to reject such testimony. Id. In reaching this
conclusion, the court noted:
[T]he same could be said of any family member who testified in
any case. The fact that a lay witness is a family member cannot be
a ground for rejecting his or her testimony. To the contrary,
testimony from lay witnesses who see the claimant every day is of
particular value; such lay witnesses will often be family members.
Id. (citation omitted); see also Dodrill, 12 F.3d at 919 (“An eyewitness can often tell whether
someone is suffering or merely malingering. . . . [T]his is particularly true of witnesses who view
the claimant on a daily basis.”).
The Court finds the underlying reasoning of Smolen applicable here. Family members are
often in the best position to witness a plaintiff’s daily activities and symptoms, which is reflected
in the SSA’s reliance on the testimony of family members. Family members living with or
otherwise supporting a social security claimant will also likely have some secondary financial
gain if the claimant receives benefits. If the Court were to accept the ALJ’s rejection of lay
witness testimony on the basis of possible secondary gain without further evidence of a financial
motive, it would undermine the SSA’s recognition of the value of such testimony.
Plaintiff also argues that the ALJ’s rejection of lay witness testimony as unsupported by
medical evidence is contrary to circuit precedent. In support of this argument, Plaintiff cites case
law that applies now-superseded Social Security Rulings. As such, that argument is
unconvincing. The ALJ, however, relied on the same medical evidence—noting improvement of
Plaintiff’s symptoms following surgery—as relied on in rejecting Plaintiff’s symptom testimony.
For the same reasons the Court found that Plaintiff’s temporary improvement following surgery
did not amount to a clear and convincing reason for rejecting Plaintiff’s testimony, the Court
PAGE 11 – OPINION AND ORDER
finds that this is not a germane reason for rejecting the lay witness testimony of Plaintiff’s sister
C. Step Three Determination
Plaintiff argues that the ALJ erred at step three because he failed to consider whether
Plaintiff’s fibromyalgia—which the ALJ found to be a severe impairment at step two—medically
equals a listed impairment. Additionally, Plaintiff argues that the ALJ’s failure to consider
whether Plaintiff’s combined impairments equal a listed impairment is reversible error. The
“If the findings related to [a claimant’s] impairments are at least of equal medical
significance to those of a listed impairment, we will find that [the claimant’s] combination of
impairments is medically equivalent to that listing.” 20 C.F.R. § 404.1526(b)(3). “If the claimant
has more than one impairment, the Commissioner must determine whether the combination of
[the] impairments is medically equal to any listed impairment.” Lewis, 236 F.3d at 514 (citing 20
C.F.R. § 404.1526) (quotation marks omitted); see also 20 C.F.R. § 416.926. “[T]he ALJ must
explain adequately his evaluation of alternative tests and the combined effects of the
impairments.” Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). Additionally, the ALJ is
not limited to simply considering a claimant’s severe impairments. See Nguyen v. Colvin, 2014
WL 127071, at *9 (D. Or. Jan. 13, 2014) (If a claimant’s “medically determinable impairment of
fibromyalgia does not meet or equal a listed impairment, the ALJ must then consider the
combined effect of all of [claimant’s] impairments in conjunction with her fibromyalgia, severe
and non-severe, in determining her RFC.”). Social Security Rulings provide further guidance for
step three determinations involving claimants suffering from fibromyalgia:
“[Fibromyalgia] cannot meet a listing in appendix 1 because
[fibromyalgia] is not a listed impairment. At step 3, therefore, we
determine whether [fibromyalgia] medically equals a listing (for
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example, listing 14.09D in the listing for inflammatory arthritis), or
whether it medically equals a listing in combination with at least
one other medically determinable impairment.
The ALJ erred by failing to consider whether fibromyalgia—on its own or in
combination with Plaintiff’s other medically determinable impairments—medically equals a
listing. The ALJ made the following step three findings:
The claimant’s hand osteoarthritis is evaluated under listings
1.02B. Treatment records do no reflect that the claimant is unable
to perform fine and gross movements effectively on a sustained
The claimant’s degenerative disc disease is evaluated under listing
1.04. Treatment records do not reflect that the claimant is unable to
ambulate effectively on a sustained basis, or that she meets other
conditions of that listing.
AR 42-43. The ALJ failed to mention whether Plaintiff’s fibromyalgia medically equals a listed
impairment or whether the combination of Plaintiff’s impairments medically equals a listed
impairment. Thus the ALJ erred.2
Plaintiff also argues that she met certain listings. Plaintiff, however, fails to identify
medical evidence in the record that supports such a finding. Plaintiff refers to testimony by
Plaintiff, her sister, and her daughter. Plaintiff “bears the burden of proving that . . . she has an
impairment that meets or equals the criteria of an impairment listed in Appendix 1 of the
Commissioner’s regulations.” Burch, 400 F.3d at 683. Such a finding must be based on medical
evidence. See Lewis, 236 F.3d at 514. Plaintiff must therefore present medical evidence as to
why her impairments equal a listing. Id.; see also Burch, 400 F.3d at 683 (rejecting the plaintiff’s
Because the Court finds that the ALJ improperly rejected Plaintiff’s symptom testimony
and lay witness testimony, the Commissioner must properly consider this evidence on remand.
Therefore, the Court notes that the step-three determination may change upon proper
consideration of the testimonial evidence.
PAGE 13 – OPINION AND ORDER
step three argument because “[e]ven on appeal, [plaintiff] has not pointed to any evidence of
functional limitations . . . which would have impacted the ALJ’s analysis”). Because Plaintiff
fails to identify medical evidence in support of her argument, the Court does not reach this
argument. See Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001)
(noting that “requiring the district court to search the entire record, even though the adverse
party’s response does not set out the specific facts or disclose where in the record the evidence
for them can be found, is unfair” to the court and other litigants).
D. Past Relevant Work
Plaintiff argues the ALJ’s step four finding is reversible error. Plaintiff contends that
three of Plaintiff’s former jobs do not qualify as past relevant work because they did not
constitute substantial gainful activity. Additionally, Plaintiff argues that substantial evidence
does not support the ALJ’s finding that she can perform her past relevant work as actually
performed and as generally performed.
1. Substantial Gainful Activity
Plaintiff argues that her 2006 process server, 2008 auction center, and 2008 telemarketer
jobs do not qualify as past relevant work because they were not substantial gainful activity.
“Past relevant work is work that you have done within the past 15 years, that was substantial
gainful activity, and that lasted long enough for you to learn to do it.” 20 C.F.R.
§§ 404.1560(b)(1), 416.960(b)(1). Work must involve substantial gainful activity to constitute
past relevant work. Lewis, 236 F.3d at 515. To qualify as substantial gainful activity, work must
be both substantial and gainful. 20 C.F.R. §§ 404.1572, 416.972. “Earnings can be a
presumptive, but not conclusive, sign of whether a job is substantial gainful activity.” Lewis, 236
F.3d at 515. Social Security Regulations establish the average monthly earnings that will
generally show that a plaintiff engaged in substantial gainful activity. 20 C.F.R.
PAGE 14 – OPINION AND ORDER
§§ 404.1574(a)(1), 416.974(a)(1). If a plaintiff’s earnings averaged $860 or below in 2006 and
$940 or below in 2008, the burden shifts to the Commissioner to identify substantial evidence
that the Plaintiff engaged in substantial gainful activity. See 20 C.F.R. §§ 404.1574, 416.974; see
also Lewis, 236 F.3d at 515 (“The presumption that arises from low earnings shifts the step-four
burden of proof from the claimant to the Commissioner . . . [to] point[ ] to substantial evidence,
aside from earnings, that the claimant has engaged in substantial gainful activity.”). The ALJ
must consider five factors: the nature of the work, how the claimant performs the work, if the
work is done under special conditions, if the claimant is self-employed, and the time spent in
work. 20 C.FR. §§ 404.1573, 416.973.
Plaintiff performed the process server job from May 2006 to July 2006 and reported total
earnings of $316. AR 1, 234, 271. Plaintiff’s average monthly earnings for this work fall below a
monthly average of $860. Accordingly, the ALJ was required to consider the five factors
provided in the Social Security Regulations to overcome the presumption that this work did not
qualify as substantial gainful activity. See 20 C.FR. §§ 404.1573, 416.973.
On her work history report, Plaintiff reported performing the telemarketer job from
March 2008 to April 2008. AR 1. During the hearing, however, she testified to performing the
job for a total of four months. AR 93. Her earnings records reflect total earnings of $2409.
AR 234. If Plaintiff’s hearing testimony is credited, her average monthly earnings for this
position were $602.25, bringing her below the $940 monthly average that would create a
presumption that this work constituted substantial gainful activity. If, however, her work history
report is credited and Plaintiff only performed the telemarketer work for one month, Plaintiff’s
average monthly earnings would be between $2409.
PAGE 15 – OPINION AND ORDER
The Court, however, need not resolve the disparity in Plaintiff’s reported periods of work.
In addition to qualifying as substantial gainful activity, the work must also have lasted long
enough for Plaintiff to have learned how to do it to constitute past relevant work. At the hearing,
the vocational expert (“VE”) testified that the telemarketer job had a specific vocational
preparation (“SVP”) of 3. With an SVP of 3, a job would take two to four months for the average
worker to learn the skills and techniques required to perform the job. AR 94. Thus, if Plaintiff
performed the job for one month as stated on her work history report, she would not have
performed the job long enough to learn how to do it for the purpose of satisfying the regulatory
requirements of past relevant work. And if Plaintiff performed the job for four months as she
testified during the hearing, her average monthly earnings would fall below the presumptive
substantial gainful activity amount, and the ALJ would have been obligated to discuss the five
factors laid out in Social Security Regulations.
Plaintiff performed the auction center job from June 2008 to November 2008 and
reported total earnings of $1500.50. AR 1. Plaintiff’s average monthly earnings were therefore
$310.10, well below the $940 monthly average that would create a presumption that this work
constituted substantial gainful activity. Therefore, Social Security Regulations require the ALJ to
consider five factors to overcome the presumption that this work did not qualify as substantial
gainful activity. See 20 C.FR. §§ 404.1573, 416.973.
Because Plaintiff’s work as a process server and auction assistant—and possibly her work
as a telemarketer, as discussed above—fell below the average monthly earnings prescribed by
Social Security Regulations, the ALJ was obligated to consider five factors to overcome the
presumption that the work did not qualify as substantial gainful activity. The ALJ failed to
discuss the factors. See AR 46-47. Thus, the ALJ erred at step four by finding that these jobs
PAGE 16 – OPINION AND ORDER
qualified as past relevant work. See Lewis, 236 F.3d at 517 (“The Commissioner did not rebut
the presumption that [the claimant] had not engaged in substantial gainful activity, and thus had
not engaged in past relevant work. The ALJ erred at step four.”).
2. Past Relevant Work “As Actually Performed”
A plaintiff must be able to perform past relevant work as actually performed or as
generally performed. Pinto v. Massanari, 249 F.3d 840, 843 (9th Cir. 2001). “Social Security
Regulations name two sources of information that may be used to define a claimant’s past
relevant work as actually performed: a properly completed vocational report and the claimant’s
own testimony.” Id. (citing SSR 82-61, available at 1982 WL 31387 (Jan. 1, 1982); SSR 82-41,
available at 1982 WL 31389 (Jan. 1, 1982)).
The ALJ found that Plaintiff has the following residual functional capacity:
[T]o perform less than the full range of light work as defined in 20
C.F.R. 404.1567(b) and 416.967(b). She should never climb
ladders, ropes or scaffolds; she should not work at unprotected
heights or around hazardous machinery; she can frequently climb
ramps and stairs; she can frequently stoop, crouch, kneel, and
crawl; and she can frequently finger and handle.
AR 43. “‘Frequent’ means occurring from one-third to two-thirds of the time.” SSR 83-10,
available at 1983 WL 31251 (Jan. 1, 1983). Thus, a “frequent” limitation restricts Plaintiff to
performing a function “for a total of approximately 6 hours of an 8-hour workday.” Id.
Plaintiff also argues that the ALJ erred by finding that Plaintiff could perform her past
relevant work as a telemarketer, 3 security guard, and bank clerk as actually performed. Plaintiff
described her work as a security guard as requiring up to eight hours of stooping and crouching,
nine hours of standing, and one hour of walking per ten-hour shift. AR 270. The ALJ found that
Because the Court finds that the ALJ erred in finding that the telemarketer job qualified
as past relevant work, as discussed above, the Court does not decide whether Plaintiff is capable
of performing this work as actually performed.
PAGE 17 – OPINION AND ORDER
Plaintiff is limited to frequent stooping and crouching, which would restrict Plaintiff to
approximately six hours of these tasks in an eight-hour shift. Plaintiff’s work as a security guard,
as actually performed, exceeded her RFC.
The same is true for Plaintiff’s past relevant work as a bank clerk. Plaintiff described this
work as requiring eight hours per shift of walking, standing, sitting, reaching, writing, typing,
and handling small objects. AR 272. The ALJ found that Plaintiff is limited to frequent fingering
and handling, which would restrict Plaintiff performance of these tasks to approximately six
hours in an eight-hour shift. Because Plaintiff’s work as a bank clerk required up to eight hours
of fingering and handling, this work as actually performed exceeds Plaintiff’s RFC. Therefore,
the ALJ erred by determining that Plaintiff is capable of performing her past relevant work as a
security guard and bank clerk, as actually performed.
3. Past Relevant Work “As Generally Performed”4
“The Dictionary of Occupational Titles (DOT) descriptions can be relied upon—for jobs
that are listed in the DOT—to define the job as it is usually performed in the national economy.”
SSR 82-61. An ALJ is also permitted to rely on the testimony of a VE characterizing past
relevant work, particularly when the determination involves a “complex issue.” 20 C.F.R.
§§ 404.1560, 404.1566, 416.960, 416.966. “In order for an ALJ to accept vocational expert
testimony that contradicts the Dictionary of Occupational Titles, the record must contain
‘persuasive evidence to support the deviation.’” Pinto, 249 F.3d at 846 (quoting Johnson v.
Shalala, 60 F.3d 1428 (9th Cir. 1995). An ALJ “must resolve [a] conflict [between VE testimony
and the DOT] by determining if the explanation given by the VE . . . is reasonable and provides a
Plaintiff argues that the ALJ erred in finding she could perform her past relevant work
as a telemarketer, security guard, and bank clerk as generally performed. Because the Court finds
that the telemarketer job does not qualify as past relevant work, as discussed above, the Court
does not decide whether Plaintiff is capable of performing this work as generally performed.
PAGE 18 – OPINION AND ORDER
basis for relying on the VE . . . testimony rather than on the DOT information.” SSR 00-4p,
available at 2000 WL 1898704 (Dec. 4, 2000). Although neither the DOT listings nor VE
testimony “automatically trumps” when a conflict exists, SSR 00-4p, “the ALJ must first
determine whether a conflict exists” and, if one does, “the ALJ must then determine whether the
vocational expert’s explanation for the conflict is reasonable and whether a basis exists for
relying on the expert rather than the Dictionary of Occupational Titles.” Massachi v. Astrue, 486
F.3d 1149, 1153-54 (9th Cir. 2007). Additionally, the Social Security Rules advise that:
Finding that a claimant has the capacity to do past relevant work
on the basis of a generic occupational classification of the work is
likely to be fallacious and unsupportable. While “delivery jobs,”
or “packaging jobs,” etc., may have a common characteristic, they
often involve quite different functional demands and duties
requiring varying abilities and job knowledge.
The ALJ failed to ask the VE whether her testimony conflicted with the DOT, as required
by SSR 00-4p. See also Massachi, 486 F.3d at 1153-54 (“Here, the ALJ did not ask the
vocational expert whether her testimony conflicted with the Dictionary of Occupational Titles
and, if so, whether there was a reasonable explanation for the conflict. Thus, we cannot
determine whether the ALJ properly relied on her testimony. As a result, we cannot determine
whether substantial evidence supports the ALJ’s step-five finding that Massachi could perform
other work.”). Although this error may be harmless where there clearly is no conflict, a
determination by the ALJ of whether a conflict exists between the two sources is particularly
important when a job is not listed in the DOT (such as the bank clerk position), and when the VE
presents a “generic occupational classification” for Plaintiff’s work (such as the security guard
position). See SSR 82-61; see also Pinto, 249 F.3d at 846 (“Given that the title of hand packager
is extremely generic, as stated in the regulations, we have doubts about whether [the VE’s]
PAGE 19 – OPINION AND ORDER
assurance alone was an adequate basis for the ALJ’s determination that Pinto’s residual
functional capacity comported with her past relevant work.”). Thus, the ALJ’s failure to make
such a determination was error in this case, and the Court does not find it to be harmless.
E. Vocational Hypothetical and RFC
Finally, Plaintiff argues that the ALJ failed to properly account for Plaintiff’s symptom
testimony and lay witness testimony in the vocational hypothetical and RFC finding. Because the
Court has found that the ALJ improperly rejected Plaintiff and lay witness testimony, the Court
acknowledges that there may be additional limitations for the Commissioner to include in the
RFC and any vocational hypotheticals. The Commissioner must properly consider this evidence
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan v. Massanari, 246
F.3d 1195, 1210 (9th Cir. 2001) (citation omitted). Although a court should generally remand to
the agency for additional investigation or explanation, a court has discretion to remand for
immediate payment of benefits. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 10991100 (9th Cir. 2014). The issue turns on the utility of further proceedings. A remand for an
award of benefits is appropriate when no useful purpose would be served by further
administrative proceedings or when the record has been fully developed and the evidence is
insufficient to support the Commissioner’s decision. Id. at 1100. A court may not award benefits
punitively and must conduct a “credit-as-true” analysis on evidence that has been improperly
rejected by the ALJ to determine if a claimant is disabled under the Act. Strauss v. Comm’r of
the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
PAGE 20 – OPINION AND ORDER
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court.
Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The United States Court of Appeals for
the Ninth Circuit articulates the rule as follows:
The district court must first determine that the ALJ made a legal
error, such as failing to provide legally sufficient reasons for
rejecting evidence. If the court finds such an error, it must next
review the record as a whole and determine whether it is fully
developed, is free from conflicts and ambiguities, and all essential
factual matters have been resolved. In conducting this review, the
district court must consider whether there are inconsistencies
between the claimant’s testimony and the medical evidence in the
record, or whether the government has pointed to evidence in the
record that the ALJ overlooked and explained how that evidence
casts into serious doubt the claimant’s claim to be disabled. Unless
the district court concludes that further administrative proceedings
would serve no useful purpose, it may not remand with a direction
to provide benefits.
If the district court does determine that the record has been fully
developed and there are no outstanding issues left to be resolved,
the district court must next consider whether the ALJ would be
required to find the claimant disabled on remand if the improperly
discredited evidence were credited as true. Said otherwise, the
district court must consider the testimony or opinion that the ALJ
improperly rejected, in the context of the otherwise undisputed
record, and determine whether the ALJ would necessarily have to
conclude that the claimant were disabled if that testimony or
opinion were deemed true. If so, the district court may exercise its
discretion to remand the case for an award of benefits. A district
court is generally not required to exercise such discretion,
however. District courts retain flexibility in determining the
appropriate remedy and a reviewing court is not required to credit
claimants’ allegations regarding the extent of their impairments as
true merely because the ALJ made a legal error in discrediting
Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation
The Court finds that remand for further proceedings is appropriate here. At step five, the
VE testified that a limitation to “occasional” fingering and handling would “rule out competitive
PAGE 21 – OPINION AND ORDER
work.” AR 96. Plaintiff argues that crediting her testimony and that of lay witnesses
unambiguously establishes such a limitation. The Court disagrees. State agency medical
consultants limited Plaintiff to “frequent” fingering and handling. Thus, a conflict remains as to
Plaintiff’s fingering and handling limitations and a remand for benefits is not appropriate. Upon
remand, the Commissioner must properly consider the witness testimony, resolve the conflicts
and ambiguities in the record, and evaluate Plaintiff’s limitations and RFC.
The Court REVERSES the Commissioner’s decision that Ms. Huskins is not disabled
and REMANDS for further proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 10th day of January, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 22 – OPINION AND ORDER
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