United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
AIKEN UNITED STATES DISTRICT JUDGE.
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
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
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).
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).
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
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 §
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.
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
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 ...