United States District Court, D. Oregon
JAMES B. JR., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
Aiken United States District Judge
James B. 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 application for Supplemental Security Income
("SSI"). For the reasons set forth below, the
Commissioner's decision is AFFIRMED.
April 17, 2014, plaintiff applied for SSI. He alleged
disability beginning December 17, 2013, due to a right arm
and head injury, problems with his right leg, severe pain in
the right side of his body, multiple sclerosis, dyslexia, and
a learning disability. Plaintiffs application was denied
initially and upon reconsideration. On July 21, 2016,
plaintiff appeared at a hearing before an ALJ. On August 18,
2016, the ALJ issued a decision finding plaintiff not
disabled. The Appeals Council denied review making the
ALJ's decision the final decision of the Commissioner.
This action followed.
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. Astrue, 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 that plaintiff had not engaged in
"substantial gainful activity" since the alleged
disability onset date. Tr. 21; 20 C.F.R. §§
404.1520(a)(4)(i), (b); id. §§
416.920(a)(4)(i), (b). At step two, the ALJ found that
plaintiff suffers from the severe impairments of degenerative
disc disease, cervical spine with multilevel stenosis; right
brachial plexus injury; and borderline intellectual
functioning. Tr. 21; see also 20 C.F.R.
§§404.1520(a)(4)(ii), (c); id.
§§ 416.920(a)(4)(ii), (c). At step three, the ALJ
determined that 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. 21; 20 C.F.R. §§ 404.1520(a)(4)(iii),
(d); id. §§ 416.920(a)(4)(iii), (d).
then assessed plaintiffs residual functional capacity
("RFC"). 20 C.F.R. § 404.1520(e); id.
§ 416.920(e). The ALJ found that plaintiff had the
residual functional capacity to perform light work as defined
in 20 C.F.R. § 416.967(b), and that plaintiff "can
also perform simple, repetitive tasks, use the right
(non-dominant) arm for assist only and occasionally reach
above the shoulders on the right, but should not be doing
handwriting, math, or spelling." Tr. 23.
four, the ALJ concluded plaintiff had no past relevant work.
Tr. 27; 20 C.F.R. §§ 404.1520(a)(4)(iv), (f);
id. §§ 416.920(a)(4)(iv). At step five,
the ALJ concluded that plaintiff could perform work that
exists in significant numbers in the national economy;
specifically, plaintiff would work as a price marker,
Dictionary of Occupational Titles ("DOT")
209.587-034, available at 1991 WL 671802; labeler,
DOT 920.687-126, available at 1991 WL 687992;
solderer, DOT 813.684-022, available at 1991 WL
681592; and produce sorter, DOT 529.687-186, available
at 1991 WL 674781. Tr. 28; 20 C.F.R. §§
404.1520(a)(4)(v), (g)(1). Accordingly, the ALJ found
plaintiff was not disabled, and denied his application. Tr.
challenges the ALJ's analysis at step five. During the
hearing, the ALJ posed a hypothetical including all of the
limitations that the ALJ provided in his RFC to a vocational
expert ("VE"). The VE testified that someone with
the characteristics described in the hypothetical could
perform work as a price marker or labeler, among other jobs,
as they are described in the DOT. Relying on that testimony,
the ALJ concluded that with his RFC, plaintiff could perform
the price marker and labeler positions as generally
claims that the ALJ erred by relying on the VE's
testimony that plaintiff could perform work as a price marker
or labeler without reconciling the apparent conflict between
the ALJ's RFC determination and the DOT's
descriptions of those jobs. Plaintiff asserts that the jobs
of price marker and labeler exceed plaintiffs RFC because
they cany a General Educational Development ("GED")
reasoning level of two. Plaintiff ...