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Paschke v. Commissioner Social Security Administration

United States District Court, D. Oregon

May 7, 2018

DAVID PASCHKE, Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.

          ROBYN M. REBERS Attorney for Plaintiff

          BILLY J. WILLIAMS United States Attorney District of Oregon RENATA GOWIE Assistant United States Attorney

          RYAN TA LU Social Security Administration Office of the General Counsel Attorneys for Defendant

          OPINION AND ORDER

          MALCOLM F. MARSH UNITED STATES DISTRICT JUDGE

         Plaintiff David Paschke seeks judicial review of the final decision of the Commissioner of Social Security denying his application for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the Court reverses and remands the Commissioner's decision for further proceedings.

         PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiff protectively filed his DIB application on October 18, 2013, alleging disability beginning October 1, 2011, due to spondylosis; neck, shoulder and back pain; right arm numbness and tingling; headaches; leg numbness; and depression. Tr. Soc. Sec. Admin. R. ("Tr.") 10, 67-68, 79, 180, ECF No. 13. Plaintiff s claim was denied initially and upon reconsideration. Plaintifffiled a request for a hearing before an administrative law judge ("ALJ"). The ALJ held a hearing on March 8, 2016, at which Plaintiff appeared with his attorney and testified. A vocational expert, Francene M. Geers, also appeared at the hearing and testified. On April 20, 2016, the ALJ issued an unfavorable decision. Plaintiff appealed and submitted additional materials to the Appeals Council. The Appeals Council found the evidence did not show a reasonable probability that it would change the outcome of the ALJ's decision. The Appeals Council did not consider and exhibit the evidence, and thus did not include the additional materials as part of the record before the court. Tr. 2-4. The Appeals Council denied Plaintiffs request for review, and consequently, the ALJ's decision became the final decision of the Commissioner for purposes of review.

         Plaintiff was born in 1963, and was 48 years old on the alleged onset of disability date and 52 years old on the date of the hearing. Plaintiff completed high school. Tr. 181. Plaintiff has past relevant work as a steam cleaner and warehouse worker. Tr. 21.

         THE ALPS DISABILITY ANALYSIS

         The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §404.1520. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the claimant can do other work that exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).

         The ALJ found that Plaintiff meets the insured status requirements through March 31, 2016. Tr. 12. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since October 1, 2011, the alleged onset date. At step two, the ALJ found that Plaintiff has the following severe impairments: cervical and lumbar degenerative disc disease and spondylosis; mild left upper extremity carpal tunnel syndrome; and headaches. Tr. 12. At step three, the ALJ found that Plaintiffs impairments, or combination of impairments, did not meet or medically equal a listed impairment.

         The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perform light work with the following additional limitations:

[Plaintiff] can never climb ladders, ropes and scaffolds; [Plaintiff] can frequently balance; [Plaintiff] can occasionally climb ramps and stairs; [Plaintiff] can occasionally stoop, crouch, kneel, and crawl; [Plaintiff] can occasionally perform bilateral overhead reaching; and [Plaintiff] is limited to occasional handling with his non-dominant left upper extremity.

Tr. 15.

         At step four, the ALJ found that Plaintiff is unable to perform his past relevant work. At step five, the ALJ concluded that considering Plaintiffs age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that he can perform. The ALJ identified such representative occupations as office helper, motel cleaner, and bakery line worker. Accordingly, the ALJ concluded that Plaintiff has not been under a disability under the Social Security Act from October 4, 2013 through the date of the decision.

         ISSUES ON REVIEW

         On appeal to this court, Plaintiff contends the following errors were committed: (1) the ALJ improperly evaluated his testimony; (2) the ALJ improperly excluded certain limitations from the RFC; (3) the Appeals Council improperly excluded evidence from the record; and (4) the ALJ could not rely upon the vocational expert's ("VE") testimony because the hypothetical question posed to the VE differed from the RFC in the decision, and the VE's job numbers were not reliable. The Commissioner argues that the ALJ's decision is supported by substantial evidence and is free of legal error. Alternatively, the Commissioner contends that even if the ALJ erred, Plaintiff has not demonstrated harmful error.

         STANDARD OF REVIEW

         The district 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); Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). "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, 698 F.3d at 1159; (internal quotations omitted); Garrison v. Colvin,759 F.3d 995, 1009 (9th Cir. 2014). The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Trevizo, 871 F.3d at 675; Garrison, 759 F.3d at 1009. The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v. Commissioner Soc. Sec. Admin.,359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports ...


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