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Gardner v. Commissioner of Social Security Administration

United States District Court, D. Oregon

June 19, 2015

JERI GARDNER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

RORY LINERUD, Linerud Law Firm, Salem, OR, Attorney for Plaintiff.

BILLY J. WILLIAMS, Acting United States Attorney, District of Oregon, RONALD K. SILVER, Assistant United States Attorney, Portland, OR, ERIN F. HIGHLAND, Social Security Administration, Office of the General Counsel, Seattle, WA, Attorneys for Defendant.

AMENDED OPINION AND ORDER

MALCOLM F. MARSH, District Judge.

On May 6, 2015, this court issued an Opinion and Order (#13), reversing and remanding for further administrative proceedings the final decision of the Commissioner of Social Security. The Commissioner now moves for reconsideration of that Opinion pursuant to Fed.R.Civ.P. 59(e). For the reasons set forth below, Commissioner's motion for reconsideration is GRANTED.

BACKGROUND

Born on February 8, 1967, plaintiff filed her application for Disability Insurance Benefits (DIB) on January 27, 2010, alleging disability beginning March 12, 2003. Plaintiff alleged disability due to neck and shoulder injury, spinal stenosis, attention deficit hyperactivity disorder (ADHD), depression, anxiety, irritable bowel, and acid reflux.

After hearings on August 16, 2011, and April 26, 2012, the ALJ issued an unfavorable decision on May 21, 2012. On appeal to this court, plaintiff raised the following errors: (1) the ALJ failed to properly evaluate plaintiff's credibility; (2) the ALJ failed to properly evaluate plaintiff's RFC; and (3) the ALJ erred at step five. In my May 6, 2015 Opinion and Order, I concluded that the ALJ properly evaluated plaintiff's credibility and plaintiff's RFC. However, I also concluded that the ALJ committed reversible errors at step five in failing to specifically identify other jobs by their Dictionary of Occupational Titles (DOT) codes and in failing to ask the vocational expert (VE) whether his testimony was consistent with the DOT. Consequently, I reversed and remanded the ALJ's decision for further administrative proceedings.

DISCUSSION

I. Commissioner's Motion to Reconsider

Reconsideration under Rule 59 (e) "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en bane).

In the motion to reconsider, the Commissioner argues that I committed clear error in two ways. First, the Commissioner asserts that I committed clear error because the ALJ's failure to provide DOT codes for specific jobs at step five is not a legal error because substantial evidence remains for the ALJ's step five finding. Second, the Commissioner argues that I committed clear error by failing to conclude that the ALJ's failure to ask the VE if his testimony was consistent with the DOT was harmless error. Thus, the Commissioner submits that the ALJ committed no reversible error, his step five finding is supported by substantial evidence, and the ALJ's decision must be affirmed. The Commissioner, therefore asserts that I committed clear error in reversing and remanding this action for further proceedings, and my Opinion and Order and Judgment must now be corrected. I agree.

With respect to step five, I committed clear error in ruling that the ALJ committed reversible errors at step five in my previous opinion. While I note a lack of development of these two issues in the Commissioner's earlier briefings, the Commissioner is correct that I erred at step five in my earlier opinion. Therefore, the Commissioner's motion for reconsideration is granted. I adhere to my previous Opinion with respect to pages 1-20; however, the May 6, 2015 Opinion and Order is amended as follows beginning on page 21 as set forth below.

II. Amended Opinion: ALJ Did Not Err at Step Five

At step five, "the burden shifts to the Commissioner to show that the claimant can perform some other work that exists in 'significant numbers' in the national economy, taking into consideration the claimant's residual functional capacity, age, education, and work ...


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