United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge.
Shauna Jackson brings this action for judicial review of a
final decision of the Commissioner of Social Security denying
her application for disability insurance benefits (DIB) under
Title II of the Social Security Act and Supplemental Security
Income (SSI). The Court has jurisdiction under 42 U.S.C.
§§ 405(g) and 1383(c)(3). For the reasons stated
below, the Commissioner's decision is reversed and
remanded for further proceedings to (1) resolve the conflict
between Ms. Jackson's limitations and the occupational
demands; and (2) assess the severity of Ms. Jackson's
bunion and incorporate findings into her RFC
AND FACTUAL BACKGROUND
filed an application for disability insurance benefits on
March 2, 2004, alleging disability beginning January 12,
2004. Tr. 199. Plaintiff's application was denied, and
she requested a hearing before an Administrative Law Judge
(ALJ). Tr. 217-232. A hearing was held on November 9, 2006
(Tr. 189), and on April 23, 2007, the ALJ issued a decision
finding plaintiff was not disabled. Tr. 186. On June 18,
2009, the Appeals Council denied Ms. Jackson's request
for review. Tr. 16. Ms. Jackson appealed the final decision
of the Commissioner to the United States District Court and
the ALJ's decision was remanded. Tr. 1108, 1465. On
December 14, 2011, Ms. Jackson appeared before ALJ Lazuran
for a second hearing. Tr. 1449. On March 30, 2012, ALJ
Lazuran issued a Partially Favorable Decision, finding
Plaintiff disabled on November 5, 2009. Tr. 1450. Ms. Jackson
appealed the Partially Favorable Decision, and on September
18, 2013, the Appeals Council remanded the ALJ's
decision. Tr. 1465. On August 12, 2014, Ms. Jackson appeared
before ALJ Michaelsen. Tr. 1101. On November 7, 2014, ALJ
Michaelsen issued an Unfavorable Decision, upholding
Plaintiff's onset date. Tr. 1098. On January 7, 2015, Ms.
Jackson appealed this decision to the Appeals Council. Tr.
1095. The Appeals Council denied Ms. Jackson's request
for review. Tr. 1089. This appeal followed.
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. 42 U.S.C. § 405(g); Batson v. Comm'r for
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Hill v. Astrue,
698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 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 Commissioner's findings are upheld
if supported by inferences reasonably drawn from the record;
if evidence exists to support more than one rational
interpretation, the court must defer to the
Commissioner's decision. Batson, 359 F.3d at
1193; Aukland v. Massanari, 257 F.3d 1033, 1034-35
(9th Cir. 2000) (when evidence can rationally be interpreted
in more than one way, the court must uphold the
Commissioner's decision). A reviewing court, however,
“cannot affirm the Commissioner's decision on a
ground that the Administration did not invoke in making its
decision.” Stout v. Comm'r Soc. Sec.
Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation
omitted). A court may not reverse an ALJ's decision on
account of an error that is harmless. Id. at
1055-56. “[T]he burden of showing that an error is
harmful normally falls upon the party attacking the
agency's determination.” Shinseki v.
Sanders, 556 U.S. 396, 409 (2009).
Social Security Administration uses 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 claimant satisfies his or her burden with respect to the
first four steps, the burden shifts to the Commissioner at
step five. 20 C.F.R. § 404.1520. At step five, the
Commissioner's burden is to demonstrate the claimant is
capable of making an adjustment to other work after
considering the claimant's residual functional capacity,
age, education, and work experience. Id.
address step five of the most recent Unfavorable Decision
that maintained the disability onset date of November 5,
2009, but not before. The ALJ determined that Ms. Jackson was
not disabled before that date because she was able to perform
the representative occupation of surveillance system monitor.
(DOT# 379.367-010). Tr. 1106.
argues this job is incompatible with Ms. Jackson's RFC
because her RFC does not include Level 3 Reasoning. Pl.'s
Br. 4, ECF No. 11. Plaintiff points to the Ninth Circuit
holding that “there is an apparent conflict between the
residual functional capacity to perform simple, repetitive
tasks, and the demands of Level 3 Reasoning.”
Zavalin v. Colvin, 778 F.3d 842 (9th Cir.
2015). Here, while the ALJ limited Ms. Jackson to simple,
routine tasks (Tr. 1105) the representative occupation of
surveillance system monitor requires level 3 reasoning.
Dictionary of Occupational Titles. Plaintiff is
requesting relief in the form of either a remand to resolve
this apparent conflict or a remand for immediate payment of
Commissioner concedes that there is a conflict between the
RFC and the ability to perform the surveillance system
monitor job as well as other jobs at step five, and requests
remand so that further vocational testimony may be taken to
resolve the conflict. Def.'s Br. 4-5, ECF No. 16.
Zavalin v. Colvin, the Court wrote that “when
there is an apparent conflict between the vocational
expert's testimony and the DOT-for example, expert
testimony that a claimant can perform an occupation involving
DOT requirements that appear more than the claimant can
handle-the ALJ is required to reconcile the
inconsistency.” Zavalin, 778 F.3d. 842, 846
(9th Cir. 2015) citing Massachi v. Astrue, 486 F.3d
1149, 1153-54 (9th Cir. 2007). The ALJ must ask the expert to
explain the conflict and then determine whether the
vocational expert's explanation for the conflict is
reasonable. Id. Failure to do so may result in a gap
in the record that precludes a court from determining whether
the ALJ's decision is supported by substantial evidence.
that the ALJ failed to resolve the conflict and did not ask
the vocational expert to explain why a person of Ms.
Jackson's limitation could nevertheless meet the demands
of the occupation of surveillance system monitor.
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, 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 ...