Lee v. Commissioner Social Security Administration

Filing 18

Opinion and Order. The AFFIRMS the final decision of the Commissioner. Signed on 02/06/2014 by Judge Anna J. Brown. (bb) (Main Document 18 replaced on 2/6/2015) (eo).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MICHAEL LEE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

BRUCE W. BREWER
Law Offices of Bruce W. Brewer, PC
P.O. Box 421
West Linn, OR 97068
[phone]
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
RONALD K. SILVER
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204
[phone]

1 - OPINION AND ORDER

3:13-cv-01901-BR
OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
HEATHER L. GRIFFITH
Special Assistant United States Attorneys
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant

BROWN, Judge.
Plaintiff Michael Lee seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff’s application
for Disability Insurance Benefits (DIB) under Title II of the
Act.
This Court has jurisdiction to review the Commissioner’s
decision pursuant to 42 U.S.C. § 405(g).

Following a thorough

review of the record, the Court AFFIRMS the final decision of the
Commissioner.

ADMINISTRATIVE HISTORY
Plaintiff filed his application for DIB on August 11, 2010.
Tr. 142.1

His application was denied initially and on

reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on June 13, 2012.

1

Tr. 28.

At the hearing Plaintiff was

Citations to the official transcript of record filed by
the Commissioner on February 18, 2014, are referred to as “Tr.”
2 - OPINION AND ORDER

represented by an attorney.

Plaintiff and a vocational expert

(VE) testified at the hearing.

Tr. 41.

The ALJ issued a decision on July 17, 2012, in which he
found Plaintiff is not entitled to benefits.

Tr. 33.

That

decision became the final decision of the Commissioner on
August 23, 2013, when the Appeals Council denied Plaintiff’s
request for review.

Tr. 1-3.

BACKGROUND
Plaintiff was born on February 14, 1956, and was 56 years
old on the date of the hearing.
associate degree.

Tr. 194.

Tr. 142.

Plaintiff has an

Plaintiff has prior relevant work

experience as a heavy-equipment operator.

Tr. 22.

Plaintiff alleges disability since February 7, 1998, due to
injuries related to an automobile accident, diabetes, high blood
pressure, post-traumatic stress disorder, and arthritis.
Tr. 142, 146.
Plaintiff does not challenge the ALJ’s summary of the
medical evidence.

After carefully reviewing the medical records,

this Court adopts the ALJ’s summary of the medical evidence.
Tr. 19-22.

STANDARDS
The initial burden of proof rests on the claimant to
3 - OPINION AND ORDER

See

establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden a claimant must demonstrate his

inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district 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 as a whole.

42

U.S.C. § 405(g).

See also Brewes v. Comm’r, 682 F.3d 1157, 1161

(9th Cir. 2012).

Substantial evidence is “relevant evidence that

a reasonable mind might accept as adequate to support a
conclusion.”

Molina, 674 F.3d. at 1110-11 (quoting Valentine v.

Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)).
is "more than a mere scintilla" of evidence but less than a
preponderance.

Id. (citing Valentine, 574 F.3d at 690).

The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

4 - OPINION AND ORDER

It

2009).

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS
Social Security Regulations set out a five-step sequential
process for determining whether an applicant is disabled within
the meaning of the Social Security Act.

Keyser v. Comm’r of

Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011).

See also

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R.
§ 416.920.

Each step is potentially dispositive.

At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. § 416.920(a)(4)(I).

See also Keyser, 648

F.3d at 724.
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
5 - OPINION AND ORDER

impairment or combination of impairments.

Stout v. Comm’r Soc.

Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).

See also 20

C.F.R. § 416.920(a)(4)(ii); Keyser, 648 F.3d at 724.
At Step Three the Commissioner must determine whether a
claimant’s impairments meet or equal one of the listed
impairments and are so severe that they preclude substantial
gainful activity.

The claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 416.920(a)(4)(iii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§ 416.920(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

“A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

6 - OPINION AND ORDER

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).

The assessment of a claimant's

RFC is at the heart of Steps Four and Five of the sequential
analysis when the ALJ is determining whether a claimant can still
work despite severe medical impairments.

An improper evaluation

of the claimant's ability to perform specific work-related
functions "could make the difference between a finding of
'disabled' and 'not disabled.'"

SSR 96-8p, at *4.

At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.

20 C.F.R. § 416.920(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 416.920(a)(4)(v).

Keyser, 648 F.3d at 724-25.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.

If the Commissioner meets this burden, the claimant

is not disabled.

20 C.F.R. § 416.920(g)(1).

7 - OPINION AND ORDER

ALJ’S FINDINGS
At Step One the ALJ found Plaintiff did not engage in
substantial gainful activity from February 7, 1998, his
application date, through December 31, 2002, Plaintiff’s date
last insured.

Tr. 19.

At Step Two the ALJ found Plaintiff has the severe
impairments of obesity, facial and leg fractures, and left-knee
internal derangement.

Tr. 19-20.

Although the ALJ found

Plaintiff’s depression and anxiety were medically-determinable,
he concluded they were non-severe impairments.
At Step Three the ALJ found Plaintiff’s impairments do not
meet or equal the criteria for any impairment in the Listing of
Impairments.

Tr. 28.

In his RFC assessment the ALJ found

Plaintiff has the functional capacity to “perform light work as
defined in 20 C.F.R. § 416.967(b)” except Plaintiff must limit
standing and walking to two hours per day; can occasionally
climb, crouch, stoop, and balance; and cannot kneel or crawl.
Tr. 20-22.
At Step Four the ALJ found Plaintiff is unable to perform
any past relevant work.

Tr. 22.

At Step Five the ALJ found Plaintiff could perform jobs that
exist in significant numbers in the national economy such as
agricultural produce-sorter and hand-packager.

Tr. 23-24.

Although these jobs are listed at higher exertional levels in the

8 - OPINION AND ORDER

Dictionary of Occupational Titles (DOT), the ALJ relied on the
VE’s testimony that 15,000 agricultural product-sorter and 85,000
hand-packager jobs in the national economy could be performed in
a seated position consistent with the limitations in Plaintiff’s
RFC.

Tr. 23.

Accordingly, the ALJ found Plaintiff is not

disabled and, therefore, is not entitled to benefits.

Tr. 24.

DISCUSSION
Plaintiff contends the ALJ erred by relying on the VE’s
testimony that a reduced number of hand-packager and agricultural
product-sorter jobs were available to Plaintiff despite the
Dictionary of Occupational Titles (DOT) listing those jobs at
exertional levels inconsistent with Plaintiff’s walking and
standing limitations.
When a VE’s testimony deviates from the DOT, “the ALJ must
first determine whether a conflict exists” and then “determine
whether the vocational expert’s explanation for the conflict is
reasonable and whether a basis exists for relying on the expert”
rather than the DOT.
(9th Cir. 2007).

Massachi v. Astrue, 486 F.3d 1149, 1153

Reasonable explanations for conflicts between

the DOT and VE testimony include the reality that “[e]ach
occupation [in the DOT] represents numerous jobs,” VEs may have
additional information about particular job requirements from
other publications or from the VE’s professional experience, and

9 - OPINION AND ORDER

“[t]he DOT lists maximum requirements of occupations as generally
performed, not the range of requirements of a particular job as
it is performed in specific settings.”

SSR 00-49, 2000 WL

1898704, at *2-*3 (Dec. 4, 2000)(emphasis added).

See also

Massachi, 486 F.3d 1153 n.17.
After the ALJ detailed his assessment of Plaintiff’s RFC at
the hearing, the VE testified about occupations that Plaintiff
could perform consistent with his RFC:
The best options would be some essentially sedentary
jobs that are unskilled because there’s really no good
transferability of skills to jobs that would allow that
much postural sitting. Agricultural sorter is a job
that’s described as light but it can be done with a
stool in about a third of the environments in which
it’s found. So in Oregon there would be about 1,000 of
jobs [sic]. There would be about 1,500 in the State of
Washington and ten to 15,000 on a national basis that
would be consistent with the hypothetical.
Hand packaging. The DOT title says it’s medium but
it’s an omnibus title that goes across a large number
of different work environments. There are environments
where the job is done in a sitting position, primarily
nuts and fruits and dried candies and things – candies
and dried fruits and things like that. We would be
looking at approximately 800 to 1,000 in the State of
Oregon, about 1,800 in the State of Washington and
nationally about 85,000 jobs that would be done
predominantly in a sitting position.
Tr. 46-47.

The VE also testified Plaintiff could perform the

range of jobs that the VE described even if Plaintiff required a
cane to ambulate between work stations.

Finally, when asked by

the ALJ whether his testimony was consistent with the DOT, the VE
responded:

“To the extent that it describes these issues, yes.”

10 - OPINION AND ORDER

Tr. 48.
In his decision the ALJ adopted the VE’s testimony and
“determined that the vocational expert’s testimony is consistent
with the information contained in the Dictionary of Occupational
Titles, with the noted clarifications.”

Tr. 23.

Plaintiff contends the VE did not adequately explain his
deviation from the DOT when he testified that some hand-packager
and agricultural product-sorter jobs would be available even
though those jobs were listed in the DOT as having prohibitive
exertional requirements.

Thus, according to Plaintiff, the ALJ

erred when he improperly relied on the VE’s testimony.
Plaintiff’s argument is without merit.

The VE reasonably

explained a subset of the jobs listed in the DOT general
classifications that have prohibitive exertional requirements as
to standing and walking could actually be performed at a lower
exertional level in a sitting position.

A VE’s explanation

concerning the specific exertional requirements of a job that is
different from the DOT’s general classification is the type of
explanation on which the ALJ may rely at Step Five.
49, at *2-*3.

See also Massachi, 486 F.3d 1153 n.17.

See SSR 00The Court

notes Plaintiff does not argue the VE was unqualified to testify
as a vocational expert, Plaintiff did not object to the VE’s
qualifications when asked at the hearing before the ALJ, and
Plaintiff did not produce any evidence in the record to suggest

11 - OPINION AND ORDER

that the VE’s explanation was erroneous.
Accordingly, on this record the Court concludes the ALJ
properly relied on the VE’s testimony.

CONCLUSION
For these reasons, the Court AFFIRMS the final decision of
the Commissioner.
IT IS SO ORDERED.
DATED this 6th day of February, 2015.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

12 - OPINION AND ORDER