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Jonathon T. v. Berryhill

United States District Court, D. Oregon

December 13, 2018

JONATHON T.[1], Plaintiff,
NANCY BERRYHILL, Commissioner of the Social Security Administration, Defendant.


          Michael J. McShane United States District Judge.

         Plaintiff Jonathon T. brings this action for judicial review of a final decision of the Commissioner of Social Security denying his application for supplemental security income (“SSI”) under Title XVI of the Social Security Act and disability insurance benefits (“DIB”) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         The issues before this Court are: (1) whether the Administrative Law Judge (ALJ) erred in determining that Plaintiff's Residual Functional Capacity (RFC) was light exertional; and (2) if the ALJ erred in determining Plaintiff's RFC, whether the error was harmless.

         Because the ALJ's RFC finding was supported by substantial evidence in the record, the ALJ did not legally err and the Commissioner's decision is AFFIRMED.


         Plaintiff applied for DIB and SSI on December 20, 2012, alleging disability since September 15, 2012. Tr. 16.[2] Both claims were denied initially, tr. 129, and upon reconsideration, tr. 140. Plaintiff timely requested a hearing before an ALJ, see tr. 146, and appeared before the Honorable Shani Pines on September 17, 2015, tr. 36. ALJ Pines denied Plaintiff's claims by a written decision dated November 27, 2015. Tr. 16-28. Plaintiff sought review from the Appeals Council, tr. 77, and was denied, tr. 1, rendering the ALJ's decision final. Plaintiff now seeks judicial review.

         Plaintiff completed the ninth or tenth grade, tr. 42, 213, and worked variously from 2003 to 2012 as a gas station attendant, gas station manager, and most recently as a hose manufacturer, tr. 263. Plaintiff was 44 years old at the alleged onset of disability, tr. 27, and 47 at the time of his hearing, see id.; see also tr. 36. Plaintiff alleges disability due to rheumatoid arthritis, depression, degenerative disc disease of the lower back, tendonitis, and hepatitis C. Tr. 212. Plaintiff argues on appeal that the ALJ wrongly determined that his RFC is light exertional with some additional functional limitations. Pl.'s Br. at 5-6.


         The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “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 v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, the court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989) (citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986)). “‘If the evidence can reasonably support either affirming or reversing,' the reviewing court ‘may not substitute its judgment' for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).


         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden of proof rests on the claimant for steps one through four, and on the Commissioner for step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step five, the Commissioner's burden is to demonstrate that the claimant can make an adjustment to other work after considering the claimant's residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is disabled. Id. If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Id.

         Plaintiff contends the ALJ's disability decision contains legal errors and is not supported by substantial evidence. Pl.'s Br. at 4. In particular, Plaintiff brings two arguments: (1) the ALJ erred in rejecting the expert opinion of Dr. Arthur Lorber, an orthopedic surgeon, that Plaintiff's RFC was sedentary; and (2) the ALJ's error was harmful because the vocational expert (VE) failed to testify to real jobs in the national economy at the sedentary RFC level. Because there is sufficient evidence in the record to support the ALJ's conclusion that Plaintiff's RFC was light exertional, the Commissioner's decision is affirmed.

         The Administrative Law Judge did not err in her determination of Plaintiff's Residual Functional Capacity

          Plaintiff argues that the ALJ erred in rejecting Dr. Lorber's testimony that Plaintiff's RFC was sedentary. Pl.'s Br. at 4. Plaintiff asserts that, as an orthopedic surgeon, the ALJ should have given Dr. Lorber's testimony greater weight than the opinions of the two state agency medical experts, ...

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