Hunt v. Commissioner Social Security Administration
Filing
18
OPINION & ORDER. the Commissioner's decision is reversed and remanded for further administrative proceedings consistent with this Opinion and Order. Signed on 1/15/2019 by Judge Marco A. Hernandez. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
Karen L. H.,1
No. 3:17-cv-01750-HZ
Plaintiff,
OPINION & ORDER
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
Merrill Schneider
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, Oregon 97293
Attorney for Plaintiff
Billy Williams
United States Attorney
Renata Gowie
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
Alexis L. Toma
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104
Attorneys for Defendant
1
In the interest of privacy, this Opinion and Order uses only Plaintiff’s first name and the initial
of her last name.
1 – OPINION & ORDER
HERNÁNDEZ, District Judge:
Plaintiff Karen L. H. brings this action for judicial review of the Commissioner’s final
decision denying her applications for disability insurance benefits (“DIB”) under Title II of the
Social Security Act and supplemental security income (“SSI”) under Title XVI of the Act. The
Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). The
issues before the Court are whether the Administrative Law Judge (“ALJ”) erred by:
(1) failing to include all severe limitations at step two of the sequential analysis; (2) discrediting
Plaintiff’s testimony; (3) discrediting the lay testimony of Plaintiff’s son, Dustin Damon Robert
Brumitt; and (4) relying on occupations that represent an insufficient number of jobs available in
the national economy to carry the Commissioner’s burden at step five. For the reasons that
follow, the Commissioner’s decision is reversed and remanded for further administrative
proceedings consistent with this Opinion and Order.
BACKGROUND
Plaintiff filed applications for DIB and SSI on July 25, 2013, in which she alleged a
disability-onset date of February 28, 2002. Tr. 185, 187.2 Plaintiff’s applications were denied
initially and upon reconsideration. Plaintiff’s administrative hearing was held on February 4,
2016, before ALJ S. Andrew Grace. Tr. 39–63. In a written decision issued May 17, 2016, ALJ
Grace found Plaintiff not disabled. Tr. 20–33. On August 28, 2017, the Appeals Council denied
review, rendering ALJ Grace’s decision final. Tr. 1–5.
SEQUENTIAL DISABILITY ANALYSIS
A claimant is disabled if she is unable 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.” 42 U.S.C.
2
“Tr.” refers to the administrative record transcript, filed here as ECF 14.
2 – OPINION & ORDER
§ 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. Valentine v.
Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate
burden of proving disability. Id.
At the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,
140 (1987); 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). If not, the claimant is not
disabled.
At step three, the Commissioner determines whether claimant’s impairments, singly or in
combination, meet or equal “one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;
20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the
claimant cannot perform past relevant work, the burden shifts to the Commissioner. At step five,
the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at
141–42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets its burden
and proves that the claimant is able to perform other work which exists in the national economy,
the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
3 – OPINION & ORDER
THE ALJ’S DECISION
At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since
February 28, 2002, the alleged onset date. Tr. 22–23.
At step two, the ALJ determined Plaintiff had the following severe impairments:
hypertension, obesity, “hernia status post repair,” neuropathy, recurrent kidney stones, and
anxiety. Tr. 23–25.
At step three, the ALJ found Plaintiff’s impairments or combination of impairments did
not meet or equal the severity of one of the listed impairments. Tr. 25–27.
Before step four, the ALJ determined Plaintiff had the RFC to perform work consistent
with the following limitations:
[T]he claimant had the residual functional capacity to perform sedentary work, which is
defined in 20 CFR 404.1567(a) and 416.967(a) except her postural activities are restricted
to only occasional climbing ramps/stairs, balancing, stooping, kneeling, and crouching.
Additionally, she can never climb ladders/ropes/scaffolds and never crawl. The residual
functional capacity includes a limitation to simple, repetitive, and routine tasks consistent
with unskilled work. Additionally, she is limited to low stress work, which is defined as
work requiring few decisions and few changes. A further restriction is to only occasional
contact with the public and coworkers. The claimant is able to frequently finger and feel
with the dominant right hand.
Tr. 25–30.
At step four, the ALJ determined Plaintiff did not have any past relevant work. Tr. 31.
At step five, the ALJ concluded other jobs existed in the national economy that Plaintiff
could perform, including work as an addresser and charge account clerk. Tr. 32. Accordingly, the
ALJ concluded Plaintiff was not disabled. Tr. 33.
STANDARD OF REVIEW
A court may set aside the Commissioner’s denial of benefits only when the
Commissioner’s findings are based on legal error or are not supported by substantial evidence in
4 – OPINION & ORDER
the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Substantial
evidence means 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.” Id. (internal
quotation marks omitted). Courts consider the record as a whole, including both the evidence that
supports and detracts from the Commissioner’s decision. Id.; Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational
interpretation, the ALJ’s decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal
quotation marks omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
(“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.”) (internal quotation marks omitted).
DISCUSSION
Plaintiff contends the ALJ’s decision was not supported by substantial evidence and
contains four legal errors. First, the ALJ failed to include several severe impairments at step two
of the sequential analysis. Second, the ALJ improperly discredited Plaintiff’s testimony. Third,
the ALJ improperly discredited the lay opinion of Plaintiff’s son, Dustin Damon Robert Brumitt.
Fourth, the ALJ relied on an insufficient number of jobs available in the national economy to
find Plaintiff not disabled at step five.
I.
Step Two
Plaintiff contends the ALJ improperly excluded several impairments from his analysis at
step two. In particular, Plaintiff asserts the ALJ failed to consider Plaintiff’s panic disorder with
agoraphobia, tachycardia and abnormal heart rate, vertigo, gastroesophageal reflux disease
(“GERD”), facial palsy, back and ankle pain, and irritable bowel syndrome at step two.
5 – OPINION & ORDER
Step two of the five-step disability inquiry is a de minimis screening used to eliminate
groundless claims. Yuckert, 482 U.S. at 153–154 (1987); Smolen v. Chater, 80 F.3d 1273, 1290
(9th Cir. 1996); see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (holding that ALJ
should have continued the sequential disability analysis beyond step two because there was not
substantial evidence showing that the plaintiff's claim was groundless). An impairment or
combination of impairments can be determined “not severe” only if evidence establishes a slight
abnormality that has “no more than a minimal effect on an individual’s ability to work.” SSR
85–28, 1985 WL 56856, at *2. If the ALJ determines that an impairment is a severe medically
determinable one, the analysis proceeds to step three. Keyser v. Commissioner Social Sec.
Admin., 648 F.3d 721, 725 (9th Cir. 2011). Error at step two is harmless, however, when the ALJ
nonetheless proceeds in the disability analysis and considers the symptoms and limitations
arising from the erroneously omitted condition in the formulation of the claimant’s RFC. See
Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
Aside from providing a general legal standard and some citations to limited portions of
the record in which each of the conditions is discussed, Plaintiff does not provide any meaningful
condition-specific argument as to how the record evidence establishes the ALJ erred when he did
not include each condition at step two. The Court finds Plaintiff’s argument that the ALJ erred
by failing to include panic disorder with agoraphobia at step two to be meritless because the ALJ
explicitly included the impairment characterized as “panic disorder with agoraphobia” in the
ALJ’s treatment of Plaintiff’s anxiety at step two. Tr. 24.
With respect to Plaintiff’s tachycardia, abnormal heart rate, and chest pains, the ALJ
concluded Plaintiff’s tachycardia resolved after mold was eliminated from Plaintiff’s home (Tr.
513) and that despite numerous tests there was not any other identifiable medical explanation for
6 – OPINION & ORDER
Plaintiff’s other heart-related impairments. This finding is supported by ample evidence in the
record. See, e.g., Tr. 551, 712, 740, 1046, 1269. On balance the record supports the ALJ’s
implicit conclusion that hypertension and anxiety disorder were the appropriate diagnoses
through which to consider Plaintiff’s heart-related limitations at subsequent steps of the
sequential analysis.3
Finally, although Plaintiff is correct that there are some references in the record to
vertigo, GERD, facial palsy, back and ankle pain, and irritable bowel syndrome, the record does
not reflect that any of those conditions imposed any longstanding work-related limitations on
Plaintiff that the ALJ had not already considered as part of any of the conditions that the ALJ
found to be severe. Accordingly, the Court finds the ALJ did not err when he failed to include
vertigo, GERD, facial palsy, back and ankle pain, and irritable bowel syndrome as severe
limitations at step two.
On this record, therefore, the Court concludes the ALJ did not err at step two when he did
not find panic disorder with agoraphobia, tachycardia and abnormal heart rate, vertigo, GERD,
facial palsy, back and ankle pain, and irritable bowel syndrome to be standalone severe
impairments.
II.
Plaintiff’s Testimony
Plaintiff contends the ALJ improperly rejected her testimony regarding the severity and
extent of her limitations. The ALJ is responsible for determining credibility. Vasquez, 572 F.3d
at 591. Once a claimant shows an underlying impairment and a causal relationship between the
impairment and some level of symptoms, clear and convincing reasons are needed to reject a
claimant’s testimony if there is no evidence of malingering. Carmickle v. Comm. Soc. Sec.
3
The ALJ’s finding in this respect is also consistent with Plaintiff’s hearing testimony. Tr. 48.
7 – OPINION & ORDER
Admin., 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is
malingering, “where the record includes objective medical evidence establishing that the
claimant suffers from an impairment that could reasonably produce the symptoms of which he
complains, an adverse credibility finding must be based on ‘clear and convincing reasons’”); see
also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (holding that if the claimant has
presented such evidence, and there is no evidence of malingering, then the ALJ must give
“specific, clear and convincing reasons in order to reject the claimant’s testimony about the
severity of the symptoms”) (internal quotation marks omitted).
When determining the credibility of a plaintiff’s complaints of pain or other limitations,
the ALJ may properly consider several factors, including the plaintiff’s daily activities,
inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and
relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may
also consider the ability to perform household chores, the lack of any side effects from
prescribed medications, and the unexplained absence of treatment for excessive pain. Id.
The ALJ may consider many factors in weighing a claimant’s credibility,
including (1) ordinary techniques of credibility evaluation, such as the claimant’s
reputation for lying, prior inconsistent statements concerning the symptoms, and
other testimony by the claimant that appears less than candid; (2) unexplained or
inadequately explained failure to seek treatment or to follow a prescribed course
of treatment; and (3) the claimant’s daily activities.
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (internal quotation marks omitted).
As the Ninth Circuit further explained in Molina;
While a claimant need not vegetate in a dark room in order to be eligible for
benefits, the ALJ may discredit a claimant’s testimony when the claimant reports
participation in everyday activities indicating capacities that are transferable to a
work setting[.] Even where those activities suggest some difficulty functioning,
they may be grounds for discrediting the claimant’s testimony to the extent that
they contradict claims of a totally debilitating impairment.
8 – OPINION & ORDER
674 F.3d at 1112–13 (internal citations and quotation marks omitted).
At the February 4, 2016, hearing, Plaintiff testified she visited the emergency room on
multiple occasions in 2013, 2014, and 2015 as a result of her blood pressure and anxiety. Tr. 48.
At that hearing, however, Plaintiff indicated her blood pressure was stable and had come under
better control as a result of medications. Tr. 48–49. With respect to her anxiety, Plaintiff testified
she sought mental-health treatment for approximately six months in 2014 and that she found the
treatment helpful, but that she discontinued treatment because she “gained as much knowledge as
[she] could in regards to managing [her] symptoms” and did not feel any need to reengage
mental-health services. Tr. 50–51. Nonetheless, Plaintiff indicated she still experiences panic
attacks that force her to isolate herself from others and lose her concentration. Tr. 55–57.
Plaintiff also testified she experiences neuropathy in her feet and right hand that makes it
difficult to grip items and causes pain and loss of sensation in her feet. Tr. 51–52, 54. As a result
of her neuropathy, Plaintiff testified she is able to walk for only 15 minutes at a time before
experiencing shooting pains that “bring [her] to tears.” Tr. 58.
In her Adult Function Report dated September 13, 2013, Plaintiff reported she
experiences anxiety and panic attacks that disrupt her sleep and force her to stop whatever she is
doing during the day. Tr. 231. In addition, Plaintiff wrote she has “a hard time exerting [herself]”
due to high blood pressure. Tr. 231. Plaintiff indicated she cares for her children and can perform
all daily and personal-care activities, except that “[s]ometimes they must be put on hold.” Tr.
232–33. Plaintiff also reported she is able to leave her house alone, except that she requires
somebody to accompany her if she is experiencing anxiety. Tr. 234. Plaintiff wrote that her
anxiety is worse in crowded spaces, and that she no longer rides public transit as a result. Tr.
236. Plaintiff indicated her conditions affect her abilities to walk, talk, hear, see, complete tasks,
9 – OPINION & ORDER
concentrate, and understand. Tr. 236. Plaintiff reported she can walk for “several city blocks,”
and can pay attention and complete tasks unless she is having an anxiety or panic attack. Tr. 236.
Plaintiff reported she must “immediately check on family members [and] make sure they’re
okay” when she has a panic or anxiety attack. Tr. 237.
The ALJ discredited Plaintiff’s testimony because medical evidence was inconsistent
with Plaintiff’s allegations, Plaintiff’s blood pressure was controlled by medications, Plaintiff
elected to terminate mental-health treatment, and Plaintiff’s level of daily activity was
inconsistent with Plaintiff’s allegations of disability.
The ALJ’s finding that the medical record was not consistent with Plaintiff’s allegations
is supported by substantial evidence. Although Plaintiff reported she has “a hard time exerting
herself,” an exercise stress test performed on December 12, 2013, indicated Plaintiff had a “[f]air
exercise capacity for [her] age.” Tr. 231, 785, 1046. With respect to Plaintiff’s allegations of pain
in her hands and feet, the medical record contains no record of any such complaints until
December 23, 2014, when Plaintiff first complained of “nerve pains” in her feet. Tr. 1640.
Plaintiff visited a podiatrist on June 4, 2015, June 25, 2015, August 13, 2015, and October 8,
2015, but the cause of her foot pain remained unclear. Tr. 1704, 1752, 1756, 1760–61.
Nonetheless, Plaintiff told other treatment-providers on June 18, 2015, that she “frequently walks
for exercise,” and on November 20, 2015, that she walks at a “mod[erate] to brisk” rate for “2
hours . . . 4 days per week.” Tr. 1736, 1746. These reports directly contradict Plaintiff’s February
4, 2016, testimony that she can only walk for 15 minutes before requiring rest. Tr. 58. With
respect to the right-hand limitations that Plaintiff testified began two months before the hearing
and limited her ability to grasp objects, there is not any medical evidence in the record to support
10 – OPINION & ORDER
Plaintiff’s allegations even though Plaintiff had an opportunity to submit additional medical
records at the time of the hearing or thereafter. Tr. 54.
The ALJ also reasonably concluded Plaintiff’s blood pressure was controlled by
medications. Although Plaintiff had periods during which she sought emergency treatment in
part because of her blood pressure, even in those instances Plaintiff’s blood pressure improved
shortly after receiving treatment and testing did not indicate any underlying heart condition. Tr.
551, 1080, 1111, 1146–47, 1204–05, 1239–40. Nonetheless, through extended periods of the
record Plaintiff’s blood pressure was well-controlled by medication, and, despite occasional
acute flare-ups, does not appear to have caused Plaintiff significant day-to-day functional
limitations. See, e.g., Tr. 600, 757, 787.
Finally, the ALJ reasonably concluded Plaintiff’s allegations of significant anxiety were
inconsistent with her sparse history of mental-health treatment. Plaintiff first obtained treatment
for anxiety in June 2011. Tr. 823. Less than two months later, however, Plaintiff discontinued
treatment because her anxiety was “under control” and she was “feeling optimistic about her
future.” Tr. 816. Plaintiff obtained some medication management for anxiety from her primary
care physician in June 2013, and by September 9, 2013, Plaintiff’s anxiety was under “much
improved control.” Tr. 517, 537. In October 2014 Plaintiff initiated mental-health treatment at
Sequoia Mental Health Services and made “good progress” after engaging in therapy, but
terminated further treatment because, Plaintiff reported, she wanted to “find a provider closer to
home.” Tr. 831–32. There is not any indication in the record that Plaintiff ever sought to
reestablish treatment. Moreover, this evidence conflicts with Plaintiff’s testimony that she
discontinued treatment and had not considered reengaging mental-health services because she
“had gained as much knowledge as [she] could in regards to managing [her] symptoms,” and
11 – OPINION & ORDER
“[she] didn’t feel, and the counselor didn’t feel that [she] needed to go any further.” Tr. 50–51.
The ALJ reasonably concluded that Plaintiff’s testimony of significant anxiety that adversely
affected her physical health was undermined by Plaintiff’s failure to obtain consistent treatment
for her anxiety.
On this record, therefore, the Court concludes the ALJ did not err when he discredited
Plaintiff’s testimony because he provided legally sufficient reasons for doing so.
III.
Lay Testimony of Dustin Damon Robert Brumitt
Plaintiff next contends the ALJ erred when he discredited the testimony of Plaintiff’s son,
Dustin Damon Robert Brumitt. “In determining whether a claimant is disabled, an ALJ must
consider lay witness testimony concerning a claimant’s ability to work.” Stout v. Comm’r of Soc.
Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006) (citing Dodrill v. Shalala, 12 F.3d 915, 919
(9th Cir. 1993)). Lay-witness testimony cannot be disregarded without comment and the ALJ
must give germane reasons for discounting such testimony. Molina, 674 F.3d at 1114. Germane
reasons must be specific. Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (citing Stout, 454
F.3d at 1053). Germane reasons for discounting lay-witness testimony include conflicts with
medical evidence and inconsistency with the plaintiff’s daily activities. Lewis v. Apfel, 236 F.3d
503, 511–12 (9th Cir. 2001). Another germane reason to discredit lay testimony is that it is
substantially similar to the claimant’s validly discredited allegations. Valentine, 574 F.3d at 694.
Brumitt submitted a Third Party Function Report dated November 27, 2013, in which he
indicated he spends time with Plaintiff “every week or two.” Tr. 239. Brumitt reported
“[p]hysical exertion causes [Plaintiff’s] heart to race thus causing symptoms to worsen,” and that
Plaintiff cannot reliably work because “random ‘episodes’ . . . make[] her have to stop what
she’s doing.” Tr. 239. Brumitt indicated Plaintiff’s conditions have made it so she can no longer
12 – OPINION & ORDER
“[c]omplete all tasks home [and] work-related without putting her life on hold because of
symptoms that randomly occur.” Tr. 240. Brumitt also reported Plaintiff experiences “nocturnal
panic attacks that keep her from falling back asleep and her symptoms wake her up throughout
the night.” Tr. 240. Brumitt wrote that Plaintiff “is afraid of going out in public because her
symptoms occur randomly,” and that Plaintiff “doesn’t go for walks anymore.” Tr. 243.
The ALJ discredited Brumitt’s testimony on the basis that (1) Brumitt did not spend
enough time with Plaintiff to establish firsthand knowledge of her functional abilities and (2) his
testimony merely repeated Plaintiff’s testimony, which the ALJ found not to be fully credible.
The Court disagrees with the ALJ’s finding that Brumitt did not spend sufficient time
with Plaintiff, his mother, to establish at least some firsthand knowledge of Plaintiff’s functional
capacity. Contrary to the ALJ’s rationale, an individual who sees a claimant on a weekly or nearweekly basis can establish a sufficient firsthand knowledge of the claimant’s functional abilities
to provide competent testimony.
Nonetheless, the ALJ reasonably found that Brumitt’s testimony appears in significant
part to be based on Plaintiff’s reporting. Brumitt, for example, submitted testimony regarding
Plaintiff’s sleep disturbances, a matter on which there is no apparent basis for him to have
firsthand knowledge outside of Plaintiff’s reports. Similarly, as the ALJ also noted, Brumitt’s
testimony regarding Plaintiff’s ability to exercise and the frequency with which she walks for
exercise appears to be based on Plaintiff’s report, and, as noted, is contradicted by the medical
evidence.
Accordingly, on this record the Court concludes the ALJ did not err when he discredited
Brumitt’s lay testimony.
13 – OPINION & ORDER
IV.
Step Five
Plaintiff contends the ALJ’s finding at step five that Plaintiff could perform other work
that existed in significant numbers in the national economy was erroneous because (1) the ALJ
improperly found Plaintiff could perform work as a charge account clerk that exceeds Plaintiff’s
RFC as to reasoning; and (2) the 7,400 addresser jobs that exist in the national economy are
insufficient to constitute a “significant number” of jobs. Defendant acknowledges the
requirements of the charge account clerk occupation exceed Plaintiff’s RFC as to reasoning, but
nonetheless contends the 7,400 addresser jobs are enough to carry the Commissioner’s burden at
step five.
The Ninth Circuit has found that 25,000 jobs existing in the national economy is
sufficient to carry the Commissioner’s step-five burden of demonstrating that “significant
numbers” of such jobs exist. Gutierrez v. Comm’r Soc. Sec., 740 F.3d 519, 528–29 (9th Cir.
2014). In the context of assessing harmless error, the Ninth Circuit has suggested that “10,000
. . . jobs found by the expert may not amount to a significant number of jobs in the national
economy,” Randazzo v. Berryhill, 725 F. App’x 446, 448 (9th Cir. 2017), and observed that
although the Ninth Circuit has “‘never set out a bright-line rule for what constitutes a ‘significant
number’ of jobs,’ it is not clear that [5,000 jobs nationally] are sufficient.” De Rivera v.
Berryhill, 710 F. App’x 768, 769 (9th Cir. 2018) (quoting Gutierrez, 740 F.3d at 528–29).
Caselaw in this District casts further doubt on whether fewer than 25,000 jobs existing in the
national economy – and certainly fewer than 10,000 jobs in the national economy – can
constitute “significant numbers” such that they are sufficient to carry the Commissioner’s burden
at step five. See Lisa L. v. Comm’r Soc. Sec., No. 3:17-cv-01874, 2018 WL 6334996, at *4 (D.
Or. Dec. 5, 2018).
14 – OPINION & ORDER
The Court, therefore, concludes the 7,400 addresser jobs available in the national
economy do not constitute jobs available in significant numbers in the national economy.
Accordingly, on this record the Court finds the ALJ erred at step five.
V.
Remand
Because the Court concludes the ALJ’s decision contained a harmful legal error and,
therefore, was not supported by substantial evidence in the record, the remaining question is
whether this case should be remanded for further administrative proceedings or an immediate
award of benefits. Harman v. Apfel, 211 F.3d 1172, 1177–78 (9th Cir. 2000). The Ninth Circuit
applies the “credit-as-true” rule for determining whether remand for an immediate award of
benefits is proper. Garrison, 759 F.3d at 1020. Each of the following must be satisfied to justify
an immediate award of benefits:
(1) the record has been fully developed and further administrative proceedings
would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient
reasons for rejecting evidence, whether claimant testimony or medical opinion;
and (3) if the improperly discredited evidence were credited as true, the ALJ
would be required to find the claimant disabled on remand.
Id. Even if those requirements have been met, the district court retains the flexibility to remand
the case for further proceedings, particularly where the record as a whole creates serious doubts
that the claimant is disabled. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
On this record the Court concludes the record has not been fully developed and there
remains a need for further administrative proceedings. Although the vocational expert (VE)
relied on the addresser and charge account clerk jobs in his answer to the ALJ’s question
regarding whether jobs existed in significant numbers in the national economy that Plaintiff
could perform, the VE did not indicate whether there may be other occupations available to
Plaintiff. See Tr. 60. At a minimum, therefore, additional VE testimony is necessary to determine
15 – OPINION & ORDER
whether there are jobs that exist in significant numbers in the national economy that are available
to Plaintiff.
Accordingly, the Court concludes remand to the Commissioner for further administrative
proceedings is appropriate.
CONCLUSION
For these reasons, the Commissioner’s decision is reversed and remanded for further
administrative proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this _____ day of January, 2019.
______________________________
MARCO A. HERNÁNDEZ
United States District Judge
16 – OPINION & ORDER
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