Alton v. Commissioner Social Security Administration

Filing 21

Opinion and Order. The Court REVERSES the decision of the Commissioner, DENIES the Commissioner's Motion 18 to Remand for further administrative proceedings, and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for the immediate calculation and award of benefits. Signed on 01/03/2018 by Judge Anna J. Brown. See attached 15 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MARPLE ALTON,
Plaintiff,

3:17-cv-00048-BR
OPINION AND ORDER

v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social
Security Administration,
Defendant.

MERRILL SCHNEIDER
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, OR 97293
[phone]
Attorneys for Plaintiff

1

On January 23, 2017, Nancy A. Berryhill was appointed
Acting Commissioner of Social Security and pursuant to Federal
Rule of Civil Procedure 25(d) is substituted as Defendant in this
action.
1 - OPINION AND ORDER

BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
MICHAEL S. HOWARD
Social Security Administration
Office of the General Counsel
701 Fifth Avenue
Suite 2900 MS 221A
Seattle, WA 98104-7075
[phone]
Attorneys for Defendant
BROWN, Judge.
Plaintiff Marple Alton seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Supplemental Security Income (SSI) and Disability Insurance
Benefits (DIB) under Titles XVI and II of the Social Security
Act.
This matter is now before the Court on Plaintiff’s Complaint
in which she seeks review of the Commissioner’s decision and the
Commissioner's Motion to Remand (#18) for further administrative
proceedings on the ground that the Administrative Law Judge (ALJ)
erred at Step Five.
Following a review of the record, the Court REVERSES the

2 - OPINION AND ORDER

Commissioner's decision, DENIES the Commissioner's Motion to
Remand for further administrative proceedings, and REMANDS this
matter pursuant to sentence four of 42 U.S.C. § 405(g) for the
immediate calculation and award of benefits.

ADMINISTRATIVE HISTORY
Plaintiff filed her applications for SSI and DIB on
October 9, 2013.

Tr. 277, 279.2

onset date of August 10, 2013.

Plaintiff alleged a disability
Her applications were denied

initially and on reconsideration.
May 13, 2016.

Tr. 39-71.

An ALJ held a hearing on

At the hearing Plaintiff and a

vocational expert (VE) testified.

Plaintiff was represented by

an attorney.
On June 16, 2016, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 17-33.

On November 15, 2016, that decision

became the final decision of the Commissioner when the Appeals
Council denied Plaintiff's request for review.

Tr. 1-7.

See

Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

BACKGROUND
Plaintiff was born on July 19, 1953.

2

Tr. 277.

Plaintiff

Citations to the official transcript of record filed by
the Commissioner on June 1, 2017, are referred to as "Tr."
3 - OPINION AND ORDER

was 62 years old at the time of the hearing.
GED.

Tr. 77.

Plaintiff has a

Plaintiff has past relevant work experience as a

“material expeditor and expeditor.”

Tr. 31.

Plaintiff alleges disability due to depression, high blood
pressure, sleep apnea, bipolar disorder, and history of a stroke.
Tr. 180.
Except when noted, 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.

See Tr. 23-24, 27-31.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

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

To meet this burden, a claimant must demonstrate her

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)).
4 - OPINION AND ORDER

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.
U.S.C. § 405(g).

42

See also Brewes v. Comm’r of Soc. Sec. Admin.,

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)).

It 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.
2009).

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

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).

5 - OPINION AND ORDER

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I).

See

also Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
2011).
At Step Two the claimant is not disabled if the
Commissioner determines the claimant does not have any medically
severe impairments or combination of impairments.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

20 C.F.R.

See also Keyser, 648

F.3d at 724.
At Step Three 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.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.

20 C.F.R.

See also Keyser, 648

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
6 - OPINION AND ORDER

regular and continuing basis despite her limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.

See also Social Security Ruling

“A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule."
at *1.

20 C.F.R.

SSR 96-8p,

In other words, the Social Security Act does not require

complete incapacity to be disabled.

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)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
416.920(a)(4)(iv).

20 C.F.R. §§ 404.1520(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.
416.920(a)(4)(v).

20 C.F.R. §§ 404.1520(a)(4)(v),

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

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.

7 - OPINION AND ORDER

20 C.F.R. §§ 404.1520(g)(1),

416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since her August 10, 2013, alleged
onset date.

Tr. 21.

At Step Two the ALJ found Plaintiff has the severe
impairments of a fracture of the left lower extremity, obesity,
atrial fibrillation, and congestive heart failure.

Tr. 21.

The

ALJ found Plaintiff’s bipolar disorder and anxiety are not
severe.

Tr. 21.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P, appendix
1.

Tr. 24.

work.

The ALJ found Plaintiff has the RFC to perform light

Tr. 25.

The ALJ found Plaintiff can stand and walk “at

least four hours in an eight hour day up to six hours in an eight
hour day,” can sit “for a full eight hours,” and “requires a cane
when walking over rough terrain and slopes.”

Tr. 25.

At Step Four the ALJ concluded Plaintiff cannot perform her
past relevant work.

Tr. 31.

At Step Five the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy.
Accordingly, the ALJ found Plaintiff is not disabled.

8 - OPINION AND ORDER

Tr. 32.

DISCUSSION
Plaintiff contends the ALJ erred (1) at Step Two when he
found Plaintiff’s mental-health impairments are nonsevere and
(2) at Step Five when he found Plaintiff could do other jobs that
exist in the national economy.
In her Motion to Remand the Commissioner concedes the ALJ
erred at Step Five when he failed to identify a “significant
range” of work as required by Rule 202.00(c).
subpt. P, appl. 2.

20 C.F.R. pt. 404,

The Commissioner moves the Court to remand

this matter for further proceedings on that issue.
I.

The ALJ erred at Step Five.
Plaintiff alleges the ALJ erred at Step Five when he failed

to identify a “significant range” of work as required by Rule
202.00(c).
As noted, at Step Five the Commissioner must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).

20 C.F.R. §§ 404.1520(a)(4)(v),

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

The

burden shifts to the Commissioner at Step Five 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
9 - OPINION AND ORDER

C.F.R. part 404, subpart P, appendix 2.

If the Commissioner

meets this burden, the claimant is not disabled.

20 C.F.R.

§§ 404.1520(g)(1), 416.920(g)(1).
Rule 202.00(c) provides:
[F]or individuals of advanced age who can no
longer perform vocationally relevant past work and
who have a history of unskilled work experience,
or who have only skills that are not readily
transferable to a significant range of
semi-skilled or skilled work that is within the
individual's functional capacity, or who have no
work experience, the limitations in vocational
adaptability represented by functional restriction
to light work warrant a finding of disabled.
20 C.F.R. pt. 404, subpt. P, app. 2 (emphasis added).

In

Lounsburry v. Barnhart, 468 F.3d 1111, 1116 (9th Cir. 2006), the
Ninth Circuit explained:
The specific issue we confront is the meaning of
the phrase “significant range of work.” The
Commissioner takes the position that the term
“work” refers to individual jobs, and the phrase
“significant range” only requires Lounsburry to
adjust to other work existing in significant
numbers in the national economy in one or more
occupations. However, the term “work” under Rule
202.00(c) means distinct occupations, and
“significant numbers” is no substitute for and
cannot satisfy the plain language of Rule
202.00(c) requiring a “significant range of . . .
work. . . . We thus construe the phrase
“significant range of ... work” in Rule 202.00(c)
to require a significant number of occupations.”
Emphasis in original.
Here the ALJ concluded Plaintiff could perform one aspect of
the job of expeditor.

The ALJ did not find Plaintiff could do a

“significant number” of “distinct occupations” as required for a
10- OPINION AND ORDER

finding of not disabled under Step Five pursuant to Rule
202.00(c).
The Commissioner concedes the ALJ erred when he failed to
identify a “significant range” of work that Plaintiff could
perform as required by Rule 202.00(c).
On this record the Court concludes the ALJ erred at Step
Five when he failed to identify a “significant range” of work as
required by Rule 202.00(c).
II.

The Court remands this matter for the immediate calculation
and award of benefits.
The decision whether to remand for further proceedings or

for immediate payment of benefits generally turns on the likely
utility of further proceedings.
1179 (9th Cir. 2000).

Harman v. Apfel, 211 F.3d 1172,

When "the record has been fully developed

and further administrative proceedings would serve no useful
purpose, the district court should remand for an immediate award
of benefits."

Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.

2004).
The decision whether to remand this case for further
proceedings or for the payment of benefits is a decision within
the discretion of the court.

Harman, 211 F.3d 1178.

The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.

11- OPINION AND ORDER

Id. at 1179.

The court may

"direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose."

Smolen, 80 F.3d at 1292.

The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."

Harman, 211 F.3d at 1178.

The

Court should grant an immediate award of benefits when:
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting . . .
evidence, (2) there are no outstanding issues
that must be resolved before a determination
of disability can be made, and (3) it is
clear from the record that the ALJ would be
required to find the claimant disabled were
such evidence credited.
Id.

The second and third prongs of the test often merge into a

single question:

Whether the ALJ would have to award benefits if

the case were remanded for further proceedings.

Id. at 1178 n.2.

The Court has determined the ALJ erred at Step Five when he
failed to identify a “significant range” of work that Plaintiff
could perform as required by Rule 202.00(c).

The Commissioner

asserts this matter should be remanded for further proceedings to
provide the VE with an opportunity to identify more jobs that
Plaintiff could perform.

The Commissioner relies on the VE’s

statement at the hearing that “some more industry is in there but
it would take me a bit more time” to support the VE’s assertion
that the she could identify more jobs that Plaintiff could
perform.
12- OPINION AND ORDER

Plaintiff, however, notes the VE’s statement when taken in
context, indicates the VE would not be able to identify more
occupations that Plaintiff could perform even if she had a second
opportunity to do so.

Specifically, the VE testified:

Okay. The reason I’m asking these questions is
I’m looking up - I think [Plaintiff] would have
the transferrable skills to the one job . . . as
the expeditor, just . . . that particular job
. . . . I think that would be the only job that
would come up, would be doing that particular
aspect of the past relevant work, but not the
other kind.
* * *
Your Honor, the reason I'm taking so long is I
don't quite the -- the numbers that I'm being
given are so low, I don't quite believe them, so,
I'm trying to see what other OES groups might be
able to be included. That's why it's taking me a
little bit longer. For instance, I added home
furnishing stores, which was one of the groups
that I basically -- where she worked and I added a
couple of others. I can do a little bit more
research, but with what I've done so far, it shows
about 19,000 jobs, nationally. I think that
they're what the OES probably shows. Some more
industry is in there, but it would take me a
little bit more time.
Tr. 68-69.

The VE, therefore, did not indicate she could

identify other occupations if she had more time, but rather that
she could potentially testify to a higher number of jobs in the
one identified occupation if she researched other industries.
The Ninth Circuit made clear in Lounsburry when the “record . . .
establishes that [the plaintiff’s] skills would transfer to . . .
one occupation at her residual functional capacity[, that] does

13- OPINION AND ORDER

not constitute a significant range of work” within the meaning of
Rule 202.00(3).

468 F.3d at 1116.

The Court concludes the Commissioner has not established the
VE would likely be able to identify on remand other occupations
that Plaintiff could perform and thus identify a significant
range of work Plaintiff could perform.

The Court, therefore,

concludes this matter should not be remanded for further
proceedings.
2000).

See Schneider v. Comm’r, 223 F.3d 968 (9th Cir.

See also Reddick, 157 F.3d at 729 ("We do not remand this

case for further proceedings because it is clear from the
administrative record that Claimant is entitled to benefits.");
Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989)(if remand
for further proceedings would only delay the receipt of benefits,
judgment for the claimant is appropriate).
Accordingly, the Court remands this matter for the immediate
calculation and award of benefits to Plaintiff.3

CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner, DENIES the Commissioner's Motion (#18) to Remand
for further administrative proceedings, and REMANDS this matter

3

Because the Court has determined this matter should be
remanded for the immediate calculation and award of benefits due
to the Commissioner’s error at Step Five, the Court does not
address Plaintiff’s allegation of error at Step Two.
14- OPINION AND ORDER

pursuant to sentence four of 42 U.S.C. § 405(g) for the immediate
calculation and award of benefits.
IT IS SO ORDERED.
DATED this 3rd day of January, 2018.

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

15- OPINION AND ORDER