United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE.
Amber O. brings this action pursuant to the Social
Security Act (the “Act”), 42 U.S.C. §
405(g), to obtain judicial review of a final decision of the
Commissioner of Social Security (the
“Commissioner”) denying her Supplemental Security
Income (“SSI”) under Title XVI of the Act. 42
U.S.C. § 1381 et seq. Plaintiff asserts one
error: that the Administrative Law Judge (“ALJ”)
relied on testimony from the Vocational Expert
(“VE”) that conflicted with the Dictionary of
Occupational Titles (“DOT”),
without explaining this inconsistency. In response,
“[t]he Commissioner does not dispute that the record
reveals unexplained inconsistencies between the VE testimony
and the [DOT], ” but argues that these
inconsistences are immaterial and “do not support
remand because the Medical-Vocational Guidelines apply and
show that Plaintiff is not disabled.” Def. Br., at 2
(Docket No. 15). For the following reasons, the Court
REVERSES the Commissioner’s decision and REMANDS for
further administrative proceedings.
11, 2015, plaintiff filed an application for SSI, with a
protective filing date of May 1, 2015, and alleging a
disability onset of May 1, 2015. Tr. 15, 146. Her claim was
denied initially on September 10, 2015, and upon
reconsideration on December 29, 2015. Tr. 83, 90. On February
3, 2016, plaintiff filed a written request for hearing, which
was held August 22, 2017, before ALJ Robert F. Campbell. Tr.
33-54, 93-95. Plaintiff appeared and testified, represented
by counsel; a vocational expert (“VE”) also
testified. Id. On November 15, 2017, the ALJ issued
a decision finding plaintiff not disabled under the Act and
denying benefits. Tr. 12-32. On January 16, 2018, plaintiff
requested Appeals Council review of the ALJ’s decision,
which was denied August 6, 2018. Tr. 1, 145. Plaintiff then
sought review before this Court.
was born in 1982. Tr. 28. She has an eighth-grade education
and has been unsuccessful in trying to obtain a GED. Tr. 40.
She has limited past work experience in fast food service and
in childcare. Tr. 178. She suffers from diabetes, neuropathy,
hepatitis, bipolar disorder, posttraumatic stress disorder
(“PTSD”), back pain, and fibromyalgia. Tr. 285,
414, 455-57, 507, 547. Plaintiff is married and has three
children. Tr. 38.
court must affirm the Commissioner’s decision if it is
based on proper legal standards and the findings are
supported by substantial evidence in the record. Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial
evidence is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotation omitted).
The court must weigh “both the evidence that supports
and detracts from the [Commissioner’s]
conclusion.” Martinez v. Heckler, 807 F.2d
771, 772 (9th Cir. 1986). “Where the evidence as a
whole can support either a grant or a denial, [the court] may
not substitute [its] judgment for the ALJ’s.”
Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir.
2007) (citation omitted); see also Burch v.
Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding
that the court “must uphold the ALJ’s decision
where the evidence is susceptible to more than one rational
interpretation”). “[A] reviewing court must
consider the entire record as a whole and may not affirm
simply by isolating a specific quantum of supporting
evidence.” Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007) (quotation omitted).
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 process for
determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
§§ 404.1520, 416.920. First, the Commissioner
determines whether a claimant is engaged in
“substantial gainful activity”; if so, the
claimant is not disabled. Yuckert, 482 U.S. at 140;
20 C.F.R. §§ 404.1520(b), 416.920(b). At step two,
the Commissioner determines whether the claimant has a
“medically severe impairment or combination of
impairments.” Yuckert, 482 U.S. at 140-41; 20
C.F.R. §§ 404.1520(c), 416.920(c). A severe
impairment is one “which significantly limits [the
claimant’s] physical or mental ability to do basic work
activities[.]” 20 C.F.R. §§ 404.1520(c) &
416.920(c). If not, the claimant is not disabled.
Yuckert, 482 U.S. at 141. At step three, the
Commissioner determines whether the impairments meet or equal
“one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity.” Id.; 20 C.F.R.
§§ 404.1520(d), 416.920(d). If so, the claimant is
conclusively presumed disabled; if not, the analysis
proceeds. Yuckert, 482 U.S. at 141.
point, the Commissioner must evaluate medical and other
relevant evidence to determine the claimant’s
“residual functional capacity”
(“RFC”), an assessment of work-related activities
that the claimant may still perform on a regular and
continuing basis, despite any limitations his impairments
impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c),
416.920(e), 416.945(b)-(c). At the fourth step, the
Commissioner determines whether the claimant can perform
“past relevant work.” Yuckert, 482 U.S.
at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If
the claimant can work, he is not disabled; if he cannot
perform past relevant work, the burden shifts to the
Commissioner. Yuckert, 482 U.S. at 146 n.5. At step
five, the Commissioner must establish that the claimant can
perform other work that exists in significant numbers in the
national economy. Id. at 142; 20 C.F.R. §§
404.1520(e) & (f), 416.920(e) & (f). If the
Commissioner meets this burden, the claimant is not disabled.
20 C.F.R. §§ 404.1566, 416.966.
one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since the application date. Tr.
17. At step two, the ALJ found that plaintiff had these
severe impairments: diabetes with neuropathy, hepatitis,
bipolar disorder, and PTSD. Id. At step three, the
ALJ found that plaintiff did not have an impairment or
combination thereof that met or equaled a listed impairment.
Tr. 18. The ALJ found that plaintiff had the RFC to perform
sedentary work, with limitations on sitting and standing, as
well as other exertional limitations, and with a limitation
to “simple routine work.” Tr. 20. At step four,
the ALJ found that plaintiff had no past relevant work. Tr.
25. At step five, the ALJ found that plaintiff could
successfully adjust to other jobs that exist in significant