United States District Court, D. Oregon, Portand Division
OPINION AND ORDER
E. Jones, United States District Judge.
S. (Plaintiff) seeks judicial review of the final decision by
the Commissioner of Social Security (the Commissioner)
denying his application for Supplemental Security Income
(SSI) disability payments under Tile XVI of the Social
Security Act (the Act). This court has jurisdiction to review
the Commissioner's decision pursuant to 42 U.S.C. §
405(g). Because the Commissioner's decision is not
supported by substantial evidence, I REVERSE and REMAND for
applied for SSI in 2014, alleging a disability onset date in
September 2013. After the agency denied Plaintiffs claim for
disability benefits, Plaintiff received a hearing before an
Administrative Law Judge (ALJ) in September 2016. The ALJ
issued his decision in November 2016, finding Plaintiff not
disabled. After the Appeals Council denied Plaintiffs request
for review, Plaintiff timely filed this action seeking
reviewing court must affirm the Commissioner's decision
if it is based on proper legal standards and supported by
substantial evidence. 42 U.S.C. § 405(g). Substantial
evidence is '"such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion.'" Biestek v. Berryhill, ___
U.S. ___, 139 S.Ct. 1148, 1154 (2019) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). This court must weigh the evidence that
supports and detracts from the ALJ's conclusion and
'"may not affirm simply by isolating a specific
quantum of supporting evidence."' Garrison v.
Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007)). When the evidence is susceptible to more than
one rational interpretation, the court must uphold the
Commissioner's decision if it is "supported by
inferences reasonably drawn from the record."
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
2008) (citation omitted). The reviewing court may not affirm
the Commissioner's decision based on a ground that the
agency did not invoke in making its decision. Stout v.
Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006).
defines "disability" as the "inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
12 months." 42 U.S.C. § 423(d)(1)(A). To determine
whether a claimant is disabled, the ALJ uses a five-step
sequential inquiry. See 20 C.F.R. §§
404.1520, 416.920; Lounsburry v. Barnhart, 468 F.3d
1111, 1114 (9th Cir. 2006). Here, steps two and five are at
two, the ALJ determines whether the claimant suffers from any
severe impairments. See Bowen v. Yuckert, 482 U.S.
137, 140-41 (1987). An impairment is "severe" if it
significantly limits the claimant's ability to perform
basic work activities and is expected to persist for twelve
months or longer. See id, 482 U.S. at 141. Here, the
ALJ found Plaintiff suffered from several severe impairments,
but found that Plaintiffs hearing impairment was not severe.
four, the ALJ found Plaintiff could not return to his past
relevant work. The ALJ then proceeded to step five, where the
burden of proof shifts to the Commissioner to show that the
claimant can perform other work that exists in significant
numbers in the national economy, considering the
claimant's Residual Functional Capacity (RFC), age,
education, and work experience. Tackett v. Apfel,
180 F.3d 1094, 1100 (9th Cir. 1999); Bustamonte v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). The ALJ
found Plaintiff had the RFC to perform light work, with no
more than frequent stooping, occasional climbing, and
occasional handling and fingering with his right upper
extremity, and was limited to simple, repetitive, routine
tasks. Tr. 24.
five, the ALJ heard testimony from a vocational expert on
whether a hypothetical person with Plaintiffs RFC and
background could work in any competitive job. The ALJ
concluded that Plaintiff could perform light jobs that exist
in significant numbers in the national economy, including the
representative occupations of flagger and tanning salon
attendant. Tr. 29.
argues that the ALJ committed harmful error by failing to
include the hearing impairment in the RFC. I agree and
conclude that this case must be remanded to further develop
The Prior ALJ's Findings on Plaintiffs Hearing
previously filed an application for SSI in 2011, which was
denied in 2013. Tr. 116-27. Although the prior ALJ found
Plaintiff not disabled, she also found that Plaintiffs
hearing impairment was severe, and that Plaintiff was limited
to environments "with no more than level 3 moderate
noise (such as a business office)," and that he could
not work "around hazards where auditory warnings are
necessary" or "perform work that requires ...