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Ramos v. Colvin

United States District Court, D. Oregon

February 23, 2015

ADOLFO RAMOS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


MICHAEL J. McSHANE, District Judge.

Plaintiff Adolfo Ramos brings this action for judicial review of a final decision of the Commissioner of Social Security denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). The issue before this Court is whether the Administrative Law Judge (ALJ) erred by including more restrictive limitations in his written residual functional capacity findings (RFC1) than in the hypothetical question (RFC2) posed to the vocational expert (VE).[1] Because the record is too ambiguous to credit either RFC1 or RFC2, the Commissioner's decision is REVERSED and this matter is REMANDED for further proceedings.


Plaintiff applied for DIB on March 2, 2010, alleging disability since June 23, 2009. Tr. 28, 174-180. This claim was denied initially and upon reconsideration. Tr. 28, 84-92, 94-101. Plaintiff timely requested a hearing before an ALJ, and appeared before the Honorable Paul G. Robeck on December 16, 2011. Tr. 28, 42-83. ALJ Robeck denied plaintiff's claim by a written decision dated January 6, 2012. Tr. 28-35. Plaintiff sought review from the Appeals Council, which was subsequently denied, thus rendering the ALJ's decision final. Tr. 1-3. Plaintiff now seeks judicial review.

Plaintiff, born on February 14, 1957, tr. 48, 174, completed the second grade in Mexico, tr. 64, 205, and worked most recently for Warn Industries as an assembly worker (2001-2009), tr. 71, 192. Plaintiff was fifty-two at the time of alleged disability onset, and fifty-four at the time of his hearing. See tr. 48, 174.[2] Plaintiff alleges disability due to: a herniated lumbar disk; osteoarthritic right knee; migraine headaches; depression; suicidal ideation; and a left-eye pterygium with reduced vision, chronic irritation and redness. Pl.'s Br. 3, ECF No. 15.


The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence on the record. See 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). To determine whether substantial evidence exists, this Court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).


The Social Security Administration utilizes a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's RFC, age, education, and work experience. Id.

Plaintiff contends that he is unable to perform his past relevant work as an assembly worker (DOT § 806.684-010) under RFC1 because he is presumptively disabled under the Medical Vocational Guidelines (the Grids). See Pl.'s Reply Br. 1-4, ECF No. 24. In response, defendant contends that RFC1 was the result of a scrivener's error and that the ALJ intended to adopt the less restrictive RFC2 proposed during the administrative hearing. Def.'s Br. 4, ECF No. 20. This Court looks to the record.

The ALJ, in RFC1, found "that the claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) except the claimant can lift up to ten pounds. " Tr. 31 (emphasis added). In making this determination, the ALJ explicitly relied on the opinions of Drs. Cowan and Kehrli. See tr. 33-34.

Dr. Cowan conducted a thirty-minute examination of plaintiff on May 26, 2010. See tr. 285-289. As a result of that examination, Dr. Cowan restricted plaintiff to lifting or carrying 10 pounds frequently and 20 pounds occasionally. Tr. 289. On October 13, 2010, Dr. Kehrli, a nonexamining agency consultant, affirmed this restriction but added additional exertional and postural limitations.[3] See also tr. 90-91 (On June 11, 2010, Dr. Alley articulated an RFC identical to that of Dr. Kehrli.). The ALJ, having considered both opinions, accorded more weight to Dr. Cowan's opinion and explained:

Dr. Kehrli reviewed the record and proffered an opinion that is generally consistent with the objective medical evidence. While I do not believe the objective medical evidence warrants all of the limitations proposed by Dr. Kehrli, the [RFC] finding nevertheless incorporates elements of his assessment. Accordingly, I afford significant ...

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