United States District Court, D. Oregon
E. Haapala, Attorney for Plaintiff
Gowie Assistant United States Attorney
Moum Social Security Administration Office of the General
Counsel Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ, United States District Judge.
Juan Gabreil Villa Cortez brings this action for judicial
review of the Commissioner's final decision 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) (incorporated by 42 U.S.C. § 1382(c)(3)). The
Commissioner's decision is reversed and remanded for
further administrative proceedings.
applied for DIB on December 13, 2012, alleging disability as
of December 7, 2012. Tr. 80. His application was denied
initially and on reconsideration. Tr. 92-96, 99-102. On June
10, 2015, Plaintiff appeared, with counsel and an
interpreter, for a hearing before an Administrative Law Judge
(ALJ). Tr. 39. On June 29, 2015, the ALJ found Plaintiff not
disabled. Tr. 32. The Appeals Council denied review. Tr. 1.
initially alleged disability based on back problems and
carpal tunnel. Tr. 230. He was 36 at the time of the
administrative hearing. Tr. 30. Plaintiff has a second- or
third-grade education and past relevant work experience as a
bander, construction worker, tree planter, fork lift driver,
and farm worker. Tr. 30, 231.
claimant is disabled if unable 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). Disability claims are evaluated according to a
five-step procedure. See, e.g., Valentine v.
Comm'r, 574 F.3d 685, 689 (9th Cir. 2009). The
claimant bears the ultimate burden of proving disability.
first step, the Commissioner determines whether a claimant is
engaged in “substantial gainful activity.” If so,
the claimant is not disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b),
416.920(b). In step two, the Commissioner determines whether
the claimant has a “medically severe impairment or
combination of impairments.” Yuckert, 482 U.S.
137 at 140-41; 20 C.F.R. §§ 404.1520(c),
416.920(c). If not, the claimant is not disabled.
three, the Commissioner determines whether the impairment
meets or equals “one of a number of listed impairments
that the [Commissioner] acknowledges are so severe as to
preclude substantial gainful activity.”
Yuckert, 482 U.S. at 141; 20 C.F.R. §§
404.1520(d), 416.920(d). If so, the claimant is conclusively
presumed disabled; if not, the Commissioner proceeds to step
four. Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant,
despite any impairment(s), has the residual functional
capacity to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can, the claimant is not disabled. If the claimant cannot
perform past relevant work, the burden shifts to the
Commissioner. In step five, the Commissioner must establish
that the claimant can perform other work. Yuckert,
482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) &
(f), 416.920(e) & (f). If the Commissioner meets his
burden and proves that the claimant is able to perform other
work which exists in the national economy, the claimant is
not disabled. 20 C.F.R. §§ 404.1566, 416.966.
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity after his alleged onset date of
December 7, 2012. Tr. 22. Next, at steps two and three, the
ALJ determined that Plaintiff has the following severe
impairments: “lumbar spinal stenosis, status-post
surgery, left carpal tunnel syndrome, status-post release,
lateral epicondylitis of the right elbow, obesity, dysthymic
disorder, anxiety disorder, and depressive disorder.”
Tr. 22. However, the ALJ determined that Plaintiff's
impairments did not meet or medically equal the severity of a
listed impairment. Tr. 23. At step four, the ALJ concluded
that Plaintiff has the following residual functional
[T]he claimant has the residual functional capacity to lift
and carry up to twenty pounds frequently and up to ten pounds
occasionally and to sit, stand, and, and/or [sic] walk for up
to six hours in an eight-hour day, with normal breaks. The
claimant is limited to no more than frequent climbing of
ramps or stairs and must never climb ladders, ropes, or
scaffolds. The claimant is limited to no more than frequent
stooping. With the left upper extremity, the claimant is
limited to no more than frequent handling or fingering. With
the right upper extremity, the claimant is limited to no more
than frequent reaching in all directions. The claimant can
understand and carry out simple instructions.
Because of these limitations the ALJ concluded that Plaintiff
could not perform his past relevant work as a bander,
construction worker, tree planter, fork lift driver, or farm
worker. Tr. 30. But at step five the ALJ found that there are
jobs that exist in significant numbers in the national
economy that Plaintiff can perform, such as “cleaner,
housekeeping, ” “cafeteria attendant, ” and
“assembler, small products I.” Tr. 31. Thus, the
ALJ concluded that Plaintiff is not disabled. Tr.
reviewing court must affirm the Commissioner's decision
if the Commissioner applied proper legal standards and the
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence” means “more than a
mere scintilla, but less than preponderance.” Bray
v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th
Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995)). It is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id.
court must weigh the evidence that supports and detracts from
the ALJ's conclusion. Lingenfelter v. Astrue,
504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The
reviewing court may not substitute its judgment for that of
the Commissioner. Id. (citing Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see
also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001). Variable interpretations of the evidence are
insignificant if the Commissioner's interpretation is a
rational reading. Id.; see also Batson, 359
F.3d at 1193. However, the court cannot not rely upon
reasoning the ALJ did not assert in affirming the ALJ's
findings. Bray, 554 F.3d at 1225-26 (citing SEC
v. Chenery Corp., 332 U.S. 194, 196 (1947)).
contends that the ALJ erred by (1) relying on vocational
expert testimony based on incomplete hypotheticals; (2)
ignoring the opinion of Plaintiff's treating doctor,
Martin Hurtado, MD; (3) improperly discounting the opinion of
Plaintiff's physical therapist, Judy Cirullo, PT; and (4)
improperly discrediting Plaintiff's symptom testimony.
Pl.'s Op. Br. 6, ECF 10. Because the ALJ erred in finding
that Plaintiff has the ability to communicate in English, the
decision of the Commissioner is reversed and remanded for
RFC Assessment & VE Hypothetical
alleges that the ALJ erred in relying on incomplete
hypotheticals presented to the Vocational Expert
(“VE”). Pl. Br. 5-10. The Residual Functional
Capacity (“RFC”) is the most a person can do,
despite his or her physical or mental limitations. 20 C.F.R.
§§ 404.1545, 416.945. In formulating a RFC, the ALJ
must consider all medically determinable impairments,
including those that are not “severe, ” and
evaluate “all of the relevant medical and other
evidence, ” including the claimant's testimony.
Id.; SSR 96-8p. An ALJ may rely on the testimony of
a VE to determine whether a claimant retains the ability to
perform past relevant work or other work in the national or
regional economy at step five. See Osenbrock v.
Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). The ALJ is
required to include only those limitations that are supported
by substantial evidence in the RFC and hypotheticals posed to
a VE. See Id. at 1163- 65. “Conversely, an ALJ
is not free to disregard properly supported limitations,
” including improperly discredited symptom testimony
provided by the claimant or lay witness. Robbins,
466 F.3d at 886. “[I]f an ALJ's hypothetical is
based on a residual functional capacity assessment that does
not include some of the claimant's limitations, the
vocational expert's testimony ‘has no evidentiary
value.'” Ghanim v. Colvin, 763 F.3d 1154,
1166 (9th Cir. 2014) (citing Carmickle v. ...