United States District Court, D. Oregon
M. COFFIN UNITED STATES MAGISTRATE JUDGE
brings this proceeding to obtain judicial review of the
Commissioner's final decision denying plaintiff s
application for disability insurance benefits and
supplemental security income.
has cervical and lumbar impairments. The ALJ found at Step
Five of the Sequential Disability Analysis that plaintiff was
not disabled because he could perform several jobs.
discussed in further detail below, plaintiff asserts that the
ALJ erred in the handling of evidence from Dr. Leinenbach and
in the performing of the Step Three Analysis.
concedes that the ALJ erred with respect to the handling of
examining Dr. Leinenbach's opinion. However, defendant
contends that such error was harmless and does not require
reversal of the ALJ's finding that plaintiff was not
did not properly account for Dr. Leinenbach's opinion
that plaintiff would need to change positions at certain
intervals. Defendant essentially concedes the Residual
Functional Capacity (RFC) determined by the ALJ was improper
and the hypothetical posed to the Vocation Expert (VE) by the
ALJ was incomplete, but that it was only harmless error
because subsequent questioning by plaintiff's attorney to
the VE regarding changing positions indicated that plaintiff
could perform one of the jobs that the ALJ determined
plaintiff could do, that of a telemarketer. However, the VE
also testified that a telemarketer would also be required to
reach certain production levels and this was not addressed
with respect to plaintiff's need to change positions. Tr.
error is harmless if it is inconsequential to the ultimate
nondisability determination, Molina v. Astrue, F.3d
1104, 1115 (9th Cir. 2012), or, if despite legal
error, the agency's path may reasonably be discerned.
Treichler v. Commissioner, 775 F.3d 1090, 1099
(9th Cir. 2014) .
cannot be said that the ALJ's error was inconsequential
to the ultimate nondisability determination or that the
agency's path could be reasonably discerned. Defendant
did not meet her burden at Step Five of the Disability
Analysis. The error was not harmless and the decision needs
to be reversed and remanded.
has sought a remand on this error for a determination of
whether any job exists when plaintiff's RFC properly
accounts for Dr. Leinenbach's opinion regarding changing
positions, p. 4 of Opening Brief and p. 3 of Reply. This
disposition is appropriate.
seeks a reversal and remand for an immediate award of
benefits for alleged errors the ALJ made at Step Three of the
Sequential Disability Analysis. In order for claimant to meet
his burden at Step Three, the claimant must " make out a
case both that she has an impairment listed in the
regulations, and that she has met the [twelve month] duration
requirement." Roberts v. Shalala, 66 F.3d 179,
182 (9th Cir. 1995).
contends that he met the Listing for a Disorder of the Spine
Listing (1.04A). However, to meet a Listing at Step Three of
the Analysis, the claimant must meet every specific finding
required by that listing. Kennedy v. Colvin, 738
F.3d 1172, 1174 (9th Cir. 2013) . Plaintiff meets
some of the listing requirements for a Disorder of the Spine
some of the time, but defendant noted in its Opposition that:
1)plaintiff did not point to parts of the record showing a
loss of strength or atrophy, and 2)plaintiff did not point to
a twelve- month period of time where plaintiff met all the
requirements of the Listing. "For a claimant to show
that his impairment matches a listing, it must meet
all of the specified medical criteria."
Sullivan v. Zebley, 493 U.S. 521, 530 (1990)
(emphasis in original). Despite defendant specifically
raising the two matters in the Opposition, plaintiff did not
suggest in his Reply that there was substantial evidence in
the record for the two matters, or address them in any ...