United States District Court, D. Oregon
M. Rebers Robyn M. Rebers, LLC Attorney for Plaintiff
J. Williams, United States Attorney Renata A. Gowie,
Assistant United States Attorney
J. Nelson, Special Assistant United States Attorney Lisa
Goldoftas, Special Assistant United States Attorney Office of
the General Counsel Social Security Administration Attorneys
OPINION AND ORDER
JELDERKS UNITED STATES MAGISTRATE JUDGE
Huong Thi N. (Plaintiff) brings this action pursuant to 42
U.S.C. §§ 405(g) and 1383(c) seeking judicial
review of a final decision of the Commissioner of Social
Security (the Commissioner) denying her application for
Disability Insurance Benefits (DIB) under the Social Security
Act (the Act). For the reasons that follow, the
Commissioner's decision is REVERSED and REMANDED for an
immediate award of benefits.
protectively filed her application for DIB on October 21,
2011, alleging disability beginning February 28, 2010. Tr.
13. The Commissioner denied her application initially and on
reconsideration. Plaintiff appeared at a hearing on September
3, 2013, before Administrative Law Judge (ALJ) Steve Lynch.
Tr. 29. Plaintiff was represented by counsel and testified
with the assistance of a Vietnamese interpreter; Thomas
Weiford, a vocational expert (VE), also testified. Tr. 29-48.
The ALJ issued an unfavorable decision on September 19, 2013.
Tr. 21. Plaintiff appealed, and the Appeals Council denied
Plaintiff's request for review. Tr. 1-3. Plaintiff
appealed to this Court, and Magistrate Judge Thomas Coffin
remanded her case for further consideration. Tr. 556-564.
Plaintiff appeared at a second hearing on August 9, 2016,
before ALJ Steve Lynch. Tr. 514. Plaintiff was represented by
counsel and testified with the assistance of a Vietnamese
interpreter; Patricia Ayerza, a VE, also testified. Tr. 514.
On September 28, 2016, the ALJ issued an unfavorable
decision. Tr. 503. Plaintiff now timely appeals the
Commissioner's final decision.
was born in 1951 and was 58 years old on the date she alleges
she became disabled. Tr. 32. She was not educated in the
United States except for English as a Second Language (ESL)
classes. Tr. 32. She has worked as a hair stylist and a
dental lab technician. Tr. 33.
engages in a five-step sequential inquiry to determine
whether a claimant is disabled within the meaning of the Act.
20 C.F.R. § 404.1520. The five step sequential inquiry
is summarized below, as described in Tackett v.
Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
One. The Commissioner determines whether the claimant is
engaged in substantial gainful activity. A claimant who is
engaged in such activity is not disabled. If the claimant is
not engaged in substantial gainful activity, the Commissioner
proceeds to evaluate the claimant's case under Step Two.
20 C.F.R. § 404.1520(b).
Two. The Commissioner determines whether the claimant
has one or more severe impairments. A claimant who does not
have any such impairment is not disabled. If the claimant has
one or more severe impairment(s), the Commissioner proceeds
to evaluate the claimant's case under Step Three. 20
C.F.R. § 404.1520(c).
Three. Disability cannot be based solely on a severe
impairment; therefore, the Commissioner next determines
whether the claimant's impairment “meets or
equals” one of the presumptively disabling impairments
listed in the Social Security Administration (SSA)
regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A
claimant who has an impairment that meets a listing is
presumed disabled under the Act. If the claimant's
impairment does not meet or equal an impairment in the
listings, the Commissioner's evaluation of the
claimant's case proceeds under Step Four. 20 C.F.R.
Four. The Commissioner determines whether the claimant
is able to perform work he or she has done in the past. A
claimant who can perform past relevant work is not disabled.
If the claimant demonstrates he or she cannot do past
relevant work, the Commissioner's evaluation of
claimant's case proceeds under Step Five. 20 C.F.R.
Five. The Commissioner determines whether the claimant
is able to do any other work. A claimant who cannot perform
other work is disabled. If the Commissioner finds claimant is
able to do other work, the Commissioner must show that a
significant number of jobs exist in the national economy that
claimant is able to do. The Commissioner may satisfy this
burden through the testimony of a vocational expert (VE), or
by reference to the Medical-Vocational Guidelines, 20 C.F.R.
Part 404, Subpart P, Appendix 2. If the Commissioner
demonstrates that a significant number of jobs exist in the
national economy that the claimant is able to do, the
claimant is not disabled. If the Commissioner does not meet
the burden, the claimant is disabled. 20 C.F.R. §
steps one through four of the sequential inquiry, the burden
of proof is on the claimant. Tackett, 180 F.3d at
1098. At step five, the burden shifts to the Commissioner to
show the claimant can perform jobs that exist in significant
numbers in the national economy. Id.
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since October 21, 2011, the date
she protectively filed her application for DIB. Tr. 496.
two, the ALJ determined that Plaintiff had the following
severe impairments: cervical spine degenerative disc disease
and right shoulder degenerative joint disease. Tr. 496. The
ALJ found ...