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James B. v. Commissioner of Social Security

United States District Court, D. Oregon

January 16, 2019

JAMES B. JR., [1]Plaintiff,


          Ann Aiken United States District Judge

         Plaintiff 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.


         On 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.


         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. 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).


         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 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).

         The ALJ 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.

         At step 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. 28.


         Plaintiff 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 performed.

         Plaintiff 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 ...

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