United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE.
Tyrone J. brings this action for judicial review of a final
decision of the Commissioner of Social Security
(“Commissioner”) denying his application for
disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Title
II of the Social Security Act. This Court has jurisdiction
under 42 U.S.C. §§ 405(g) and 1383(c)(3).
issues before this Court are whether the Administrative Law
Judge (“ALJ”): (1) erred in finding that
Plaintiff's right hip osteoarthritis was
“non-severe”; and (2) improperly relied on the
vocational expert's (“VE”) testimony. Because
there is substantial evidence in the record to support the
ALJ's findings and errors, if any, were harmless, the
Commissioner's decision is AFFIRMED.
AND FACTUAL BACKGROUND
applied for DIB and SSI on September 25, 2014, alleging
disability since August 18, 2014. Tr. 173, 175. Both claims
were denied initially and upon reconsideration. Tr. 113, 118,
126, 129. Plaintiff timely requested a hearing before an ALJ
and appeared before the Honorable Rudolph Murgo on July 28,
2016. Tr. 19, 37. ALJ Murgo denied Plaintiff's claim by a
written decision dated September 22, 2016. Tr. 16-31.
Plaintiff sought review from the Appeals Council and was
denied on September 22, 2016, rendering the ALJ's
decision final. Tr. 1. Plaintiff now seeks judicial review of
the ALJ's decision.
was 46 years old at the time of his alleged disability onset
and 49 at the time of his hearing. See tr. 173.
Plaintiff has a GED and worked as a material handler,
warehouseman, and forklift driver. Tr. 67, 210. Plaintiff
alleges disability due to hip problems, heart problems, and
diabetes. Tr. 209.
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.
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 existing in
significant numbers in the national economy after considering
the claimant's residual functional capacity
(“RFC”), 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 considered
Plaintiff's Right Hip Osteoarthritis
argues that the ALJ erred in finding that his right hip
osteoarthritis was non-severe. Pl.'s Br. 5, ECF No. 22.
Plaintiff argues that it “significantly limits his
ability to do basic work activities such as standing and
walking” and that the ALJ erred in failing to consider
its effect. Id. Defendant disagrees but argues that
any error at step two would be harmless because the ALJ found
in Plaintiff's favor at step two and considered
limitations resulting from his right hip impairment at later
steps. Def.'s Br. 4-7, ECF No. 23.
two, the ALJ must assess whether the claimant's
impairment or combination of impairments is
severe. Tackett, 180 F.3d at 1098;
see 20 C.F.R. § 404.1520(c). If not, the
claimant is not disabled. Id. If so, the ALJ
identifies the severe impairment(s) then continues to step
three. Id. In determining the claimant's RFC at
later steps, the ALJ must consider the “total limiting
effects” of all of the medically determinable
impairments, both “severe” and “non-severe,
” including the effect of pain. 20 C.F.R. §§
404.1545(e), 416.945(e); see Valentine v. Comm'r of
Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)
(quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th
Cir. 1988)). Where an ALJ errs in omitting a severe
impairment at step two, the error is harmless so long as the
ALJ considers all of the claimant's functional
limitations at subsequent steps (including those caused by
the omitted severe impairment). Lewis v. Astrue, 498
F.3d 909, 911 (9th Cir. 2007).
the ALJ found that Plaintiff had one severe
impairment-“degenerative joint disease of left hip,
status post hip replacement”-and only moderate
osteoarthritis of the right hip. Tr. 24. Substantial evidence
exists in the record to support the ALJ's finding that
Plaintiff's right hip osteoarthritis was non-severe. Even
if the ALJ erred, such error would be harmless because the