Sexton v. Commissioner Social Security Administration

Filing 19

OPINION and ORDER - The Commissioner's decision denying Plaintiff's application for DIB is AFFIRMED. DATED this 14th day of November, 2018, by United States Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
TIMOTHY S. 1,

Case No. 3:17-cv-1789-AC
Plaintiff,

OPINION AND ORDER

v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
KARLE. OSTERHOUT
Osterhout Berger Disability Law, LLC
521 Cedar Way, Suite 200
Oakmont, PA 15139
MARK A. MANNING
Harder Wells Baron & Manning, PC
474 Willamette St., Suite 200
Eugene, OR 97401
Of Attorneys for Plaintiff
1

In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the non-governmental party in this case. Where applicable, this opinion uses the same
designation for a non-governmental party's immediate family member.
OPINION AND ORDER - 1

BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
District of Oregon
1000 SW Third Ave., Suite 600
Portland, OR 97204-1011
ERIN F. HIGHLAND
Special Assistant United States Attorney
Office of the General Counsel
701 Fifth Ave., Suite 2900 M/S 221A
Seattle, WA 98104-7075
Of Attorneys for Defendant
Findings and Recommendation

ACOSTA, Magistrate Judge:
Timothy S. ("Plaintiff') seeks judicial review of the final decision by the Social Security
Commissioner ("Commissioner") denying his application for Disability Insurance Benefits
("DIB") under Title II of the Social Security Act ("SSA"). This Court has jurisdiction to review
the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based on a careful review of the
record, the Commissioner's decision should be AFFIRMED.
Procedural Background

Plaintiff filed for DIB on March 20, 2014, alleging disability beginning March 1, 2012.
(Tr. 97.) Plaintiff subsequently amended the alleged onset date to May 1, 2013. (Tr. 222.)
Plaintiff alleges disability due to depression, arthritis, back problems, muscle spasms, blindness,
and poor memory. (Tr. 98, 285.) His application was denied initially and upon reconsideration.
(Tr. 97, 110.) Two hearings were convened in this matter: the first occuned on February 11,
2016 before an Administrative Law Judge ("ALJ"); Plaintiff was represented by counsel and
testified, as did a vocational expert ("VE"). (Tr. 56-96.) A supplemental ALJ hearing took place
on June 10, 2016, in which a Plaintiff-provided VE testified. (Tr. 38-53.) Thereafter, the ALJ
OPINION AND ORDER- 2

submitted interrogatory questions to the VE who testified at the first hearing. (Tr. 392-97.) On
January 13, 2017, ALJ Sue Leise issued a decision finding Plaintiff not disabled. (Tr. 29.)
Plaintiff requested timely review of the ALJ' s decision and, after the Appeals Council denied her
: request for review, filed a complaint in this Court. (Tr. 1-3.)
Factual Background
Born in 1968, Plaintiff was 44 years old on his alleged amended disability onset date.
(Tr. 32.) Plaintiff attended school through the tenth grade, and previously worked as a ranch
hand. (Tr. 25, 226.)
Standard ofReview
The 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 supp01i a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations
omitted).

The court must weigh "both the evidence that supports and detracts from the

[Commissioner's] conclusions."

Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is
rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The 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 impaiiment which can be expected ... to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A).

OPINION AND ORDER - 3

The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1502 and
. 404.1520.

First, the Commissioner considers whether a claimant is engaged in "substantial

• gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). If so, the claimant is not
· disabled.
At step two, the Commissioner evaluates 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(a)(4)(ii). If the claimant does not have a severe impairment, he is not disabled.
At step three, the Commissioner dete1mines whether the claimant's impairments, either
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 140-41; 20 C.F.R. § 404.1520(a)(4)(iii).

If so, the claimant is presumptively

disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant can still perform "past
relevant work." 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can work, he is not disabled; if
he cannot perform past relevant work, the burden shifts to the Commissioner.
At step five, the Commissioner must demonstrate that the claimant can perform other
work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 14142; 20 C.F.R. § 404.1560(c).

If the Commissioner meets this burden, the claimant is not

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

\\ \\ \
\\ \\ \
\\ \\ \
OPINION AND ORDER - 4

The ALJ's Findings

At step one of the sequential evaluation process outlined above, the ALJ found that
. Plaintiff had not engaged in substantial gainful activity since the initial alleged onset date of
March 1, 2012. (Tr. 18.)
At step two, the ALJ found Plaintiff had the following severe impairments: degenerative
disc disease, meuropathy, and hearing loss. Id. The ALJ also found that Plaintiff's depression
was non-severe. (Tr. 19.)
At step three, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the Listings of presumptively
disabling impairments. Id.
Next, the ALJ determined that Plaintiff retained the residual functional capacity ("RFC")
· to perform light work, with the following caveats:
[He] could stand or walk for 8 hours in an 8-hour workday and sit for 8 hours in
an 8-hour workday. [Plaintiff] could occasionally climb ramps and stairs; he
could not climb ladders, ropes, and scaffolds ... could occasionally stoop, kneel,
crouch, and crawl and :frequently balance ... could not work around hazards such
as unprotected heights and dangerous machinery . . . [and] could not work in a
very loud environment.
(Tr. 20.)
At step four, the ALJ determined Plaintiff could not perform his past relevant work as a
ranch hand. (Tr. 25.)
At step five, considering Plaintiff's age, education, work experience, and RFC, the ALJ
determined that other jobs existed in the national economy which Plaintiff could perform,
including "cashier II" and "mail room sorter." (Tr. 26.) Accordingly, the ALJ concluded that
Plaintiff was not disabled under the Act. (Tr. 28-29.)

OPINION AND ORDER - 5

Discussion

The sole issue Plaintiff raises on appeal is whether the ALJ erred by excluding from the
RFC a sit/stand option limitation set forth in a hypothetical question to the VE. See Pl.'s Br. 3-8.
The parties agree on the relevant facts. During the hearing, the ALJ' s second hypothetical
question contemplated a hypothetical worker who had the capacity to, inter alia, stand, walk, or
sit eight hours per day, but with the option to alternate between sitting and standing as needed
throughout the workday. (Tr. 86-87.) Aside from the sit/stand option, the other limitations
identified in the hypothetical question were identical to the ALJ's ultimate RFC determination.
Compare (Tr. 20) with (Tr. 86-87). Indeed, the VE testified that, despite the sit/stand option, a

hypothetical worker could perform the jobs of cashier II and mail room sorter, the two jobs
identified by the ALJ at step five in support of the non-disability decision. (Tr. 26-27, 86-89.)
Thus, although the ALJ' s RFC determination was ultimately less restrictive than that posed to
the VE, the ALJ carried the step five burden of proof by identifying two of the jobs that the VE
determined were compatible with the more restrictive RFC. Id.; see, e.g., Taylor v. Colvin, 6: 12CV-01017-BR, 2013 WL 3229978, at *7 (D. Or. June 24, 2013) (harmless error where RFC in
hypothetical to VE was more restrictive than the plaintiff's actual RFC); Barragan v. Colvin, No.
CV 12-6258-OP, 2013 WL 5467430, at *6 (C.D. Cal. Sept. 30, 2013) (same); Bamforth v.
Colvin, No. Cl 13-5618BHS, 2014 WL 2711827, at *3 (W.D. Wash. June 16, 2014) (same).

Nonetheless, Plaintiff contends that this case must be remanded because the ALJ
included a footnote to the RFC determination which stated:

"The undersigned's original

hypothetical also included a sit/stand option. This was removed in the final residual functional
capacity statement above based on new evidence." (Tr. 20, n.1.) Because the "new evidence"

OPINION AND ORDER - 6

referred to in the footnote was not identified, Plaintiff maintains that the ALJ perpetrated
reversible e1rnr. 2 PL' s Br. 3.
In support, Plaintiff identifies a variety of legal authorities and concepts in his request for
. remand. First, Plaintiff asserts that the ALJ erred by considering non-record evidence in her
decision, citing 20 C.F.R. § 404.953, which requires that an ALJ decision "must be based solely
on the evidence offered at the hearing or otherwise included in the record." PL 's Br. 4. Plaintiff
fmiher argues that, as a "foundational principle," ALJ hearings are inquisitional rather than
adversarial, so the ALJ has a duty to investigate facts and develop arguments both for and
against awarding benefits. Id. (citing Sims v. Apfel, 530 U.S. 103, 110-11 (2000)). Plaintiff also
identifies the principle that an ALJ must accept and include in the RFC limitations set forth in a
medical opinion, or explain why any limitations were rejected (citing Reddick v. Chafer, 157
F.3d 715, 725 (9th Cir. 1998)). Plaintiff additionally contends that because the ALJ did not
identify what new evidence was considered, the RFC was erroneous to the extent it was not
supported by substantial evidence, and therefore the step five finding was of no probative value.
Id. (citing Valentine v. Astrue, 574 F.3d 685, 689-90 (9th Cir. 2009)). Finally, Plaintiff invokes

the ALJ' s requirement to present a decision in a manner that allows meaningful judicial review
(citing Molina v. Astrue 674 F.3d 1104, 1112 (9th Cir. 2012)). PL's Br. 7; PL's Reply 3.
Despite Plaintiff's invocations of multiple tenets of Social Security jurisprudence, only
one is apposite in this appeal: the harmless error rule. As the Ninth Circuit has repeatedly held,
. "we may not reverse an ALJ's decision on account of an error that is harmless." Molina, 674
F.3d at 1111. Plaintiff asserts that he has established error because the court cannot discern
. whether the ALJ' s decision was based on substantial evidence without an explanation of what
Specifically, Plaintiff asserts that the "new evidence" at issue must be evidence that was not
included in the record. See PL 's Br. 3-4; PL 's Reply 2-3. For the reasons that follow, the Cami
need not conjecture.
2

OPINION AND ORDER - 7

new evidence prompted the ALJ to drop the sit/stand option from the RFC. There is no need to
disambiguate the ALJ's footnote here, however, because any error in omitting the sit/stand
· limitation was entirely inconsequential to the non-disability determination. See Stout v. Comm 'r
Soc. Sec. Admin., 574 F.3d 1050, 1055 (9th Cir. 2006). Even if the sit/stand limitation was

e1rnneously omitted, the ALJ nevertheless canied the step-five burden by identifying two jobs
which were, according to the VE, compatible with the version of the RFC that included the
sit/stand limitation. Even where, as here, the ALJ explained her decision with less than ideal
clarity, there is no per se rule of prejudice. Molina, 674 F.3d at 1121-22. Based on the VE's
testimony, the error Plaintiff as assigned by Plaintiff was inconsequential to the ALJ's decision. 3
For these reasons, the court upholds the ALJ's decision as supp01ied by substantial
evidence.
Conclusion

Based on the foregoing, the Commissioner's decision denying Plaintiffs application for
DIB is AFFIRMED.
DATED this /

Lf~ ofNovember, 2018.

Plaintiffs asse1iion that "it is literally impossible to tell "what the 'new evidence' contains or
supports" is, therefore, inapposite. See PL 's Reply 3. Similarly, Plaintiffs assertion that the
court may not affirm the Commissioner's ultimate decision on grounds which the ALJ did not
invoke is also inapposite: the grounds for the affirmation-the existence of two jobs that a
hypothetical worker with the RFC set forth in the hypothetical questions to the VE at hearing and
in the inteITogatory-were invoked upon by the ALJ to the extent the hypothetical RFC was
more restrictive than the RFC of record. See id
3

OPINION AND ORDER - 8