IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHAUN M. SMILEY, 6:15-CV-00086-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

JOHN E. HAAPALA, JR.

401 E. 10th Avenue

Suite 240

Eugene, OR 97401

(541) 345-8474

Attorney for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

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Case 6:15-cv-00086-BR Document 15 Filed 06/03/16 Page 1 of 18
DAVID MORADO

Regional Chief Counsel

KATHY REIF 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/A 221A

Seattle, WA 98104

(206) 615-2531

Attorneys for Defendant

BROWN, Judge.

Plaintiff Shaun M. Smiley seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff's application

for disabled widow benefits under Title II of the Social Security

Act. This Court has jurisdiction to review the Commissioner's

decision pursuant to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court REVERSES the decision

of the Commissioner and REMANDS this matter pursuant to sentence

four of 42 U.S.C. § 405(g) for further administrative proceedings

consistent with this Opinion and Order.

ADMINISTRATIVE HISTORY

Plaintiff filed for disabled widow benefits on January 11,

2011, alleging a disability onset date of November 30, 2009. 

Tr. 212.1 The application was denied initially and on

1

 Citations to the official transcript of record filed by

the Commissioner on October 20, 2015, are referred to as "Tr."

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reconsideration. An Administrative Law Judge (ALJ) held a

hearing on April 24, 2013. Tr. 38-71. At the hearing Plaintiff

and a vocational expert (VE) testified. Plaintiff was

represented by an attorney. 

The ALJ issued a decision on May 3, 2013, in which she found

Plaintiff is not disabled and, therefore, is not entitled to

benefits. Tr. 13-31. Pursuant to 20 C.F.R. § 404.984(d), that

decision became the final decision of the Commissioner on

November 21, 2014, when the Appeals Council denied Plaintiff's

request for review. Tr. 1-7. See Sims v. Apfel, 530 U.S. 103,

106-07 (2000). 

BACKGROUND

Plaintiff was born June 3, 1958, and was 54 years old at the

time of the hearing. Tr. 82. Plaintiff completed high school. 

Tr. 68, 84. Plaintiff has past relevant work experience as an

echo assistant, massage therapist, home attendant, and daycare

worker. Tr. 67. 

Plaintiff alleges disability during the relevant period due

to a right-shoulder injury, fibromyalgia, rheumatoid arthritis,

depression, vertigo, “left hip[, and] lower back.” Tr. 82. 

Except when noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

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medical evidence. See Tr. 22-26.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden, a claimant must demonstrate her

inability "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). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)). 

The district 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 as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). "It is more than a mere scintilla [of

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evidence] but less than a preponderance." Id. (citing Valentine,

574 F.3d at 690). 

The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006). 

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007). See also 20 C.F.R. § 404.1520. Each step is potentially

dispositive. 

At Step One the claimant is not disabled if the Commissioner

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determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(a)(4)(I). See also Keyser v.

Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R. 

§ 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The

criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments). 

If the Commissioner proceeds beyond Step Three, she must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite his limitations. 20 C.F.R.

§ 404.1520(e). See also Social Security Ruling (SSR) 96-8p. “A

'regular and continuing basis' means 8 hours a day, for 5 days a

week, or an equivalent schedule." SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete

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incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885

F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv). 

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 404.1520(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 

The Commissioner may satisfy this burden through the testimony of

a VE or by reference to the Medical-Vocational Guidelines set

forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the Commissioner meets this burden, the claimant

is not disabled. 20 C.F.R. § 404.1520(g)(1).

ALJ'S FINDINGS

The ALJ concluded Plaintiff met the nondisability

requirements for disabled widow’s benefits. Tr. 18.

In her Regulatory Sequential Evaluation the ALJ found as

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follows: 

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since her November 30, 2009, alleged

onset date. Tr. 18.

At Step Two the ALJ found Plaintiff has the severe

impairments of fibromyalgia, moderate degenerative disc disease

of the cervical spine, mild degenerative disc disease of the

lumbar spine, right-knee osteoarthritis, and obesity. Tr. 18. 

The ALJ found Plaintiff’s impairment of depression is nonsevere. 

Tr. 19. 

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P, 

appendix 1. Tr. 21. The ALJ found Plaintiff has the RFC to

perform “a wide range of sedentary work.” Tr. 21. The ALJ also

found Plaintiff could occasionally climb ramps or stairs,

balance, stoop, kneel, crouch, and crawl. Tr. 21. The ALJ found

Plaintiff could never perform work that involved climbing ladders

ropes, or scaffolds or that required concentrated exposure to

hazards. Tr. 21. 

At Step Four the ALJ found Plaintiff can perform her past

relevant work as a staffing clerk, and, therefore, Plaintiff is

not disabled. Tr. 26. 

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DISCUSSION

Plaintiff contends the ALJ erred at Step Four when she found

Plaintiff can perform her past relevant work as a staffing

coordinator. Specifically, Plaintiff contends her work as a

staffing clerk is not past relevant work within the meaning of

the Social Security Regulations.

In reaching her conclusion that Plaintiff could perform past

relevant work as a staffing clerk, the ALJ reasoned:

The claimant stated in her Work History report

that she worked full time as a staffing

coordinator for in home care patients from March

2004 through September 2004 and earned $12.00 an

hour. This job meets the recency requirement for

past relevant work as it occurred within the past

15 years. It also meets the substantial gainful

activity requirement as her earnings during that

period exceed the presumptive dollar amount for

engaging in substantial gainful activity.

Tr. 26. 

Plaintiff concedes she reported on her resume and workhistory report that she worked as a staffing coordinator for six

months between March 2004 and September 2004 and earned $12 per

hour. Tr. 237, 283. In her Adult Disability Reports, however,

Plaintiff reported she worked as a staffing coordinator for only

three months in 2006. Tr. 232, 291. Plaintiff’s earnings report

does not show any earnings in 2004 and shows earnings of $872.45

in 2006. Tr. 220. In addition, on her resume Plaintiff noted

she was a staff coordinator for “Always Home Nursing Services” in

Orangevale, California. Tr. 283. Plaintiff’s earnings report,

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however, does not reflect any income received by Plaintiff from

Always Home Nursing Services. Instead Plaintiff’s earnings

report reflects she worked for Professional Nursing Services of

Northern California in 2006. At the hearing the ALJ asked the VE

extensive questions about Plaintiff’s work history, but she did

not inquire about Plaintiff’s job as a staffing coordinator or

about her employment with Professional Nursing Services. 

Plaintiff asserts the record does not support the ALJ’s

conclusion that Plaintiff worked for six months in 2004 or that

her “earnings during [March 2004 through September 2004]

exceed[ed] the presumptive dollar amount for engaging in

substantial gainful activity.” Tr. 26. Plaintiff notes her

earnings report reflects she earned $872.45 in all of 2006. 

Plaintiff asserts this amount averaged over three months is

insufficient to satisfy the presumptive dollar amount for

engaging in substantial gainful activity in 2006. According to

Plaintiff, therefore, the ALJ erred when she found Plaintiff has

past relevant work as a staff coordinator.

In order for a claimant to be disabled, the Social Security

Regulations require the claimant’s “impairment must prevent [her]

from doing past relevant work.” 20 C.F.R. 404.1520(e). The

Social Security Commission will “consider [a claimant’s] work

experience applies when it was done within the last 15 years,

lasted long enough for [a claimant] to learn to do it, and was

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substantial gainful activity.” 20 C.F.R. § 1565(a)(emphasis

added). The Social Security Regulations provide the following

guidance about substantial gainful activity:

Your earnings may show you have done substantial

gainful activity. . . . We will use your earnings

to determine whether you have done substantial

gainful activity unless we have information from

you, your employer, or others that shows that we

should not count all of your earnings. . . . 

Generally, if you worked for substantial earnings,

we will find that you are able to do substantial

gainful activity. However, the fact that your

earnings were not substantial will not necessarily

show that you are not able to do substantial

gainful activity. We generally consider work that

you are forced to stop or to reduce below the

substantial gainful activity level after a short

time because of your impairment to be an

unsuccessful work attempt. Your earnings from an

unsuccessful work attempt will not show that you

are able to do substantial gainful activity.

* * *

Earnings that will ordinarily show that you have

engaged in substantial gainful activity. We will

consider that your earnings from your work

activity as an employee . . . show that you

engaged in substantial gainful activity if:

* * *

Beginning January 1, 2001, and each year

thereafter, [earnings] average more than [$860 per

month].2

* * *

2

 The Social Security Administration lists $860 per month

for 2006 in its Programs Operations Systems Manual: 

DI 10501.015 Tables of SGA Earnings Guidelines and 

Effective Dates Based on Year of Work Activity. See

https://secure.ssa.gov/poms.nsf/lnx/0410501015

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If your average monthly earnings are equal to or

less than the amount(s) determined under paragraph

(b)(2) of this section for the year(s) in which

you work, we will generally consider that the

earnings from your work as an employee . . . will

show that you have not engaged in substantial

gainful activity. We will generally not consider

other information in addition to your earnings

except in the circumstances [not occurring in this

action].

20 C.F.R. § 1574(a)(1), (b)(2)(ii), (b)(3)(i)(emphasis added). 

Social Security Ruling 82-62 further explains substantial gainful

activity as follows:

Capacity to do past work may be indicative of the

capacity to engage in [substantial gainful

activity] SGA when that work experience

constituted SGA and has current relevance

considering duration and recency.

1. SGA

The adjudicative criteria for determining whether

a person has done “substantial” and “gainful” work

activity are explained in sections

404.1571-404.1575 and 416.971-416.975 of the

regulations.

2. Duration

Duration refers to the length of time during which

the person gained job experience. It should have

been sufficient for the worker to have learned the

techniques, acquired information, and developed

the facility needed for average performance in the

job situation. The length of time this would take

depends on the nature and complexity of the work.

SSR 82-62, at *2. 

The Court concludes the ALJ erred when she found Plaintiff

worked as a staffing coordinator in 2004 because the ALJ’s

conclusion is not supported by substantial evidence in the

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record. 

With respect to Plaintiff’s work as a staffing coordinator

in 2006, as noted, Plaintiff’s earnings for all of 2006 were

$872.45. Averaging those earnings over the three months

Plaintiff worked in 2006 results in average monthly earnings of

$290.81, which is well below the presumptive dollar amount for

engaging in substantial gainful activity set out in 20 C.F.R. 

§ 1574(b)(3)(i). In addition, on her resume Plaintiff described

her staffing coordinator position as a “trial period and [I] was

replaced by someone with more experience. I was never trained

for the position.” Tr. 283. Plaintiff asserts this indicates

she was allowed to work “at lower standards or productivity or

efficiency during her trial period and released when that special

condition ended.” According to Plaintiff, therefore, the

staffing coordinator job was an unsuccessful work attempt and may

not be considered substantial gainful activity for that reason as

well. The Social Security Regulations provide:

If you worked 3 months or less. We will consider

work of 3 months or less to be an unsuccessful

work attempt if you stopped working, or you

reduced your work and earnings below the

substantial gainful activity earnings level,

because of your impairment or because of the

removal of special conditions which took into

account your impairment and permitted you to work.

20 C.F.R. § 1574(c)(3). In addition, SSR 84-25 describes

evaluation of an unsuccessful work attempt as follows:

For SGA determination purposes, substantial work

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may, under certain conditions, be disregarded if

it is discontinued or reduced to the non-SGA level

after a short time because of the person's

impairment or the removal of special conditions

related to the impairment that are essential to

the further performance of work. The

[Unsuccessful Work Attempt] UWA criteria differ

depending on whether the work effort was for “3

months or less” or for “between 3 and 6 months.” 

If a work attempt was “unsuccessful,” a finding of

disability during the time that such work was

performed would not be precluded.

* * *

1. Work Effort of 3 Months or Less

The work must have ended or have been reduced to

the non-SGA level within 3 months due to the

impairment or to the removal of special conditions

related to the impairment that are essential to

the further performance of work. (Examples of

“special conditions” are given below.)

2. Work Effort of Between 3 and 6 Months

If work lasted more than 3 months, it must have

ended or have been reduced to the non-SGA level

within 6 months due to the impairment or to the

removal of special conditions (see below) related

to the impairment that are essential to the

further performance of work and:

a. There must have been frequent absences

due to the impairment; or

b. The work must have been unsatisfactory

due to the impairment; or

c. The work must have been done during a

period of temporary remission of the impairment;

or

d. The work must have been done under

special conditions.

SSR 84-25, at *2-3. As noted, the ALJ did not ask Plaintiff

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about her work as a staffing coordinator and did not seek any

further explanation for Plaintiff’s termination or whether she

was permitted to work at a lower standard during her three-month

period as a staffing coordinator. SSR 84-25 provides:

In considering why a work effort ended or was

reduced to the non-SGA level, we do not rely

solely on information from the worker. Therefore,

if impartial supporting evidence is not already a

part of the claims file, confirmation with the

employer is required. If the information from the

employer is inconclusive or if none is available,

the reason for work discontinuance or reduction

may be confirmed with the person's physician or

other medical source. After being apprised of the

circumstances, the physician or other medical

source could state whether, in his or her opinion

or according to the records, the work

discontinuance or reduction was due to the

impairment.

At *3. 

On this record the Court concludes the ALJ erred when she

concluded Plaintiff engaged in substantial gainful activity in

2004, failed to establish whether Plaintiff’s work as a staffing

coordinator in 2006 met the presumptive dollar amount for

engaging in substantial gainful activity, and failed to ascertain

the reason for Plaintiff’s termination in 2006.

REMAND

The decision whether to remand for further proceedings or

for immediate payment of benefits generally turns on the likely

utility of further proceedings. Harman v. Apfel, 211 F.3d 1172,

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1179 (9th Cir. 2000). When "the record has been fully developed

and further administrative proceedings would serve no useful

purpose, the district court should remand for an immediate award

of benefits." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.

2004). 

The decision whether to remand this case for further

proceedings or for the payment of benefits is a decision within

the discretion of the court. Harman, 211 F.3d 1178.

The decision whether to remand for further proceedings or

for immediate payment of benefits generally turns on the likely

utility of further proceedings. Id. at 1179. The court may

"direct an award of benefits where the record has been fully

developed and where further administrative proceedings would

serve no useful purpose." Smolen, 80 F.3d at 1292.

The Ninth Circuit has established a three-part test "for

determining when evidence should be credited and an immediate

award of benefits directed." Harman, 211 F.3d at 1178. The

Court should grant an immediate award of benefits when:

(1) the ALJ has failed to provide legally

sufficient reasons for rejecting . . .

evidence, (2) there are no outstanding issues

that must be resolved before a determination

of disability can be made, and (3) it is

clear from the record that the ALJ would be

required to find the claimant disabled were

such evidence credited.

Id. The second and third prongs of the test often merge into a

single question: Whether the ALJ would have to award benefits if

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the case were remanded for further proceedings. Id. at 1178 n.2.

As noted, the Court has concluded the ALJ erred when she

concluded Plaintiff engaged in substantial gainful activity in

2004, failed to establish whether Plaintiff’s work as a staffing

coordinator in 2006 met the presumptive dollar amount for

engaging in substantial gainful activity, and failed to ascertain

the reason for Plaintiff’s termination in 2006. The record,

however, is not clear as to whether Plaintiff’s employment in

2006 constitutes substantial gainful activity and/or an

unsuccessful work attempt. Accordingly, remand is necessary to

resolve these questions.

Accordingly, the Court remands this matter for further

development of the record and evaluation of whether Plaintiff’s

employment in 2006 constitutes substantial gainful activity

and/or an unsuccessful work attempt and, therefore, whether it

constitutes past relevant work at Step Four.

CONCLUSION

For these reasons, the Court REVERSES the decision of the

Commissioner and REMANDS this matter pursuant to sentence four of

42 U.S.C. § 405(g) for further administrative proceedings 

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consistent with this Opinion and Order.

IT IS SO ORDERED.

DATED this 3rd day of June, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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