United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United State District Judge.
brings this action under 42 U.S.C. § 405(g) to obtain
judicial review of the final decision of the Commissioner of
Social Security denying Plaintiff's claim for
supplemental security income and disability insurance
benefits. The ALJ's finding that Plaintiff is capable of
performing jobs that exist in significant numbers in the
national economy is not supported by substantial evidence.
The ALJ's decision is REVERSED and this matter is
REMANDED for further proceedings.
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. 42 U.S.C. § 405(g); Batson v. Comm'r for
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)); 20 C.F.R.
§§ 404.901; 416.1401. To determine whether
substantial evidence exists, we review 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).
“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.
Social Security Administration uses a five-step sequential
evaluation to determine whether a claimant is disabled. 20
C.F.R. §§ 404.1520; 416.920. The initial burden of
proof rests upon the claimant to meet the first four steps.
If the claimant satisfies his or her burden with respect to
the first four steps, the burden shifts to the Commissioner
at step five. 20 C.F.R. § 404.1520. At step five, the
Commissioner's burden is to demonstrate that the claimant
is capable of making an adjustment to other work after
considering the claimant's residual functional capacity
(RFC), age, education, and work experience. Id.
making the five-step determination, the Commissioner must
consult the Medical-Vocational Guidelines (the grids), which
consist of tables showing various qualifications for physical
exertional levels (sedentary, light, medium, heavy, and very
heavy). Heckler v. Campbell, 461 U.S. 458, 461-62
(1983); 20 C.F.R. § 404.1567. When a grid matches the
claimant's exertional limitations, “the guidelines
direct a conclusion as to whether work exists that the
claimant could perform.” Hoopai v. Astrue, 499
F.3d 1071, 1075 (9th Cir. 2007) (quoting Heckler,
461 U.S. at 462). When an “individual's exertional
limitations are somewhere 'in the middle' in terms of
the regulatory criteria for exertional ranges of work, more
difficult judgments are involved as to the sufficiency of the
remaining occupational base to support a conclusion as to
disability . . . [and] a [VE]'s assistance is advisable .
. . .” SSR 83-12; see also Moore v. Apfel, 216
F.3d 864, 870 (9th Cir. 2000).
found Plaintiff suffered from the following severe
impairments: morbid obesity, chronic obstructive pulmonary
disease (COPD), diabetes mellitus, degenerative joint
disease, obstructive sleep apnea, age indeterminate
compression fracture, depression, and posttraumatic stress
disorder (PTSD). Tr. 20. After a hearing, the Administrative
law judge (ALJ) concluded Plaintiff could perform some light
work and was not disabled under the act. Tr. 22-23. Plaintiff
argues the ALJ erred: (1) in failing to properly explain her
use of the light work grid and (2) by relying on the
testimony of the vocational expert (VE) who failed to provide
job numbers for specific occupations.
The ALJ's Use of the Light Exertion Grid
argues that the ALJ failed to make any explicit findings
regarding her use of the light versus sedentary grid. I
disagree. The ALJ clearly explained that she used the light
rule grid for the framework of her decision. She acknowledged
that plaintiff had additional limitations that would fall
outside of the light grid qualifications. Tr. 27, 29. The ALJ
then consulted with a VE regarding Plaintiff's exertional
capacity and found that Plaintiff could perform some light
work in the national economy regardless of her additional
essentially argues the ALJ failed to adequately explain her
decision to use the light rather than sedentary grid. But SSR
83-12-which is the agency's published policy for
application of the grids when, as here, a claimant falls
somewhere between two exertional levels-contains no
requirement that an ALJ articulate the reasoning for using
one grid over the other. SSR 83-12 merely provides that when
those circumstances arise, “[VE] assistance is
advisable for these types of cases.” Id. at
*3. Here, the ALJ did just that.
argues the agency's Program Operations Manual System
(POMS) is instructive. That internal manual provides the
following instruction for ALJ's faced with a claimant
falling between two exertional levels:
“IMPORTANT: Always explain the basis
of your conclusions.” POMS DI 25025.015.D. POMS,
however, “constitutes an agency interpretation that
does not impose judicially enforceable duties on either this
court or the ALJ.” Lockwood v. Comm'r for Soc.
Sec. Admin, 616 F.3d 1068, 1073 (9th Cir. 2010). While
failing to explain the basis of a decision to use one
exertional level over another falls outside of the POMS
instructions, it provides no basis for reversing an ALJ who,
as here, utilized VE assistance as required under SSR 83-12.
The VE's Testimony
next argues that the ALJ's decision finding Plaintiff
capable of performing jobs that exist in significant numbers
in the national economy was not ...