United States District Court, D. Oregon
M. REBERS Attorney for Plaintiff
J. WILLIAMS United States Attorney District of Oregon RENATA
GOWIE Assistant United States Attorney
TA LU Social Security Administration Office of the General
Counsel Attorneys for Defendant
OPINION AND ORDER
MALCOLM F. MARSH UNITED STATES DISTRICT JUDGE
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.
AND FACTUAL BACKGROUND
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.
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.
ALPS DISABILITY ANALYSIS
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).
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
assessed Plaintiff with a residual functional capacity
("RFC") to perform light work with the following
[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.
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.
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.
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 ...