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Craig v. Berryhill

United States District Court, D. Oregon, Eugene Division

May 16, 2018

ROZANNE CRAIG, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          ANN AIKEN UNITED STATES DISTRICT JUDGE.

         Plaintiff Rozanne Craig brings this action pursuant to the Social Security Act, 42 U.S.C, § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiffs applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). For the reasons set forth below, the Commissioner's decision is reversed and remanded for further proceedings.

         BACKGROUND

         In October 2012, plaintiff applied for DIB and SSI. She alleged disability beginning June 30, 2012, due to a herniated disc in her neck, carpal tunnel syndrome, spinal stenosis, deterioration of her bones, and rheumatoid arthritis. Plaintiffs applications were denied initially and upon reconsideration. On December 16, 2015, plaintiff appeared at a hearing before an ALJ. On February 8, 2016, the ALJ issued a decision finding plaintiff not disabled. After the Appeals Council denied review, plaintiff filed a complaint in this Court.

         STANDARD OF REVIEW

         The district court must affirm, the Commissioner's decision if it is based upon proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Berry v. Astrite, 622 F.3d 1228, 1231 (9th Cir. 2010). "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." Gutierrez v. Comm'r of Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014) (citation and quotation marks omitted), The court must weigh "both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

         COMMISSIONER'S DECISION

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A).

         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(a)(4); id, § 416.920(a)(4). At step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged disability onset date. Tr. 19; 20 C.F.R. §§ 404.l520(a)(4)(i), (b); id §§ 4l6.920(a)(4)(i), (b). At step two, the ALJ found plaintiff suffers from the severe impairment of degenerative disc disease. 20 C.F.R. §§ 404.l520(a)(4)(ii), (c); id §§ 4l6.920(a)(4)(ii), (c). The ALJ considered evidence in the record related to plaintiffs asthma, arthritis, carpal tunnel syndrome, depression, and anxiety, but found those impairments were not severe because none of them more than minimally limited plaintiffs ability to work.

         At step three, the ALJ determined plaintiffs impairments, whether considered singly or in combination, did not meet or equal "one of the listed impairments" that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Tr. 23; see also 20 C.F.R. §§ 404.l520(a)(4)(iii), (d); id. §§ 4l6.920(a)(4)(iii), (d). The ALJ found plaintiff retained the residual functional capacity ("RFC") to "perform light work as defined in 20 C.F.R. [§§] 404.1567(b) and 4l6.967(b)[, ]" with an additional limitation to no more than "occasional handling and fingering bilaterally." Tr. 23; see also 20 C.F.R. § 404.1520(e); id § 416.920(e).

         At step four, the ALJ concluded plaintiff could not perform her past relevant work as a caregiver or horticulturist because those jobs require more than light exertional work. 20 C.F.R. §§ 404.l520(a)(4)(iv), (f); id §§ 4l6.920(a)(4)(iv). At step five, the ALJ found plaintiff could perform other jobs existing in significant numbers in the national economy, such as photo finishing inspector, hand packaging inspector, and addressing machine operator. 20 C.F.R. §§ 404.l520(a)(4)(v), (g)(1); id. §§ 4l6.920(a)(4)(v), (g)(1). Accordingly, the ALJ found plaintiff not disabled and denied her applications for benefits.

         DISCUSSION

         The scope of this appeal is narrow. Plaintiff raises a single allegation of error: she contends the Commissioner did not meet her burden, at step five, to identify jobs that did not exceed plaintiffs RFC. The ALJ found plaintiff had the RFC to perform light duty work requiring no more than occasional handling and fingering. According to the descriptions in the Dictionary of Occupational Titles ("DOT"), all three jobs identified by the ALJ at step five require frequent handling and fingering. The Commissioner concedes error because the requirements of the jobs identified at step five are obviously inconsistent with plaintiffs RFC and the ALJ did not expressly acknowledge that conflict or ask the VE to resolve it. See Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (stating that, when there is an apparent inconsistency between the DOT and the VE's testimony, the ALJ "must ask the expert to reconcile the conflict before relying on the expert to decide if the claimant is disabled") (emphasis added). The parties' only dispute is whether that error was harmless.

         "[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination." Molina v. Astrue,674 F.3d 1104, 1115 (9th Cir. 2012) (internal quotation marks omitted). As the party alleging error, it is plaintiffs burden to show that the error prejudiced her. Mcleod v. Astrue,640 F.3d 881, 888 (9th Cir. 2011). When the record is ambiguous such that there is a "substantial likelihood of prejudice, " remand is appropriate. Id. "By contrast, when harmlessness is clear and not a ...


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