Potts v. Commissioner Social Security Administration

Filing 22

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 4/27/21 by Judge Anna J. Brown. See attached 13 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHRISTINE P.,1
Plaintiff,

3:20-cv-00274-BR
OPINION AND ORDER

v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
KEVIN KERR
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, OR 97293
[phone]
Attorneys for Plaintiff
SCOTT ASPAUGH
Acting United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]

1

In the interest of privacy this Court uses only the first
name and the initial of the last name of the nongovernmental
party in this case.
1 - OPINION AND ORDER

MICHAEL W. PILE
Acting Regional Chief Counsel
LISA GOLDOFTAS
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Christine P. seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which he denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act.

This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff filed an application for SSI on April 11, 2016,
and alleged a disability onset date of February 28, 2001.
Tr. 208.2

Her application was denied initially and on

reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on November 7, 2018.

2

Tr. 65-73.

A vocational expert

Citations to the official transcript of record filed by
the Commissioner on December 8, 2020, are referred to as "Tr."
2 - OPINION AND ORDER

(VE) testified at the hearing.

Plaintiff was represented by an

attorney.
On January 8, 2019, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 15-29.

On December 13, 2019, that decision

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

Tr. 1-6.

See

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

BACKGROUND
Plaintiff was born on August 4, 1965, and was 53 years old
at the time of the hearing.
school education.

Tr. 55.

relevant work experience.

Tr. 208.

Plaintiff has a high-

Plaintiff does not have any past
Tr. 24.

Plaintiff alleges disability due to Posttraumatic-Stress
Disorder (PTSD), Social Anxiety Disorder, depression, cystinuria,
bilateral carpal-tunnel syndrome, bilateral plantar fasciitis,
diabetes, and obesity.

Tr. 103.

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. 21-23.

3 - OPINION AND ORDER

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)).
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.
at 690).
4 - OPINION AND ORDER

Id. (citing Valentine, 574 F.3d

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

record.

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
I.

The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

See also 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(b).

5 - OPINION AND ORDER

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
impairment or combination of impairments.
§ 416.920(c).

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 a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
C.F.R. § 416.920(a)(4)(iii).

20

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, he 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 her limitations.
§ 416.945(a).

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.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
6 - OPINION AND ORDER

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.

20 C.F.R. § 416.920(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, he 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.

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).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff engaged in substantial
gainful activity “during the following periods:

October 2017 to

June 2018,” but “there has been a continuous 12-month period(s)
during which the claimant did not engage in substantial gainful
activity.”

The ALJ’s “remaining findings[, therefore,]

7 - OPINION AND ORDER

address[ed] the period(s) [Plaintiff] did not engage in
substantial gainful activity.”

Tr. 18.

At Step Two the ALJ found Plaintiff has the severe
impairments of “calculus of kidney/ureter with flank pain,
history of cystinuria with multiple surgeries, chronic kidney
disease, bilateral carpal tunnel syndrome, polysubstance abuse,
depressive disorder, anxiety disorder,” and PTSD.

Tr. 18.

The

ALJ found Plaintiff’s impairments of hypertension, obesity,
diabetes mellitus type II, hypothyroidism, coronary artery
disease, and angina are nonsevere and Plaintiff’s chronic
obstructive pulmonary disease is not a medically determinable
impairment.

Tr. 19.

At Step Three the ALJ concluded Plaintiff's impairments do
not meet or equal the criteria for any Listed Impairment from 20
C.F.R. part 404, subpart P, appendix 1.

The ALJ found Plaintiff

has the RFC to perform light work with the following limitations:
[Plaintiff] may frequently balance; occasionally
stoop, kneel, crouch and crawl, but may never
climb ladders, ropes and scaffolds. She must
avoid more than occasional exposure to extreme
cold, vibration, irritants such as fumes, odors,
dust, gases, chemicals, poorly ventilated spaces,
and hazards such as dangerous machinery and
unsecured heights. She may occasionally engage in
handling with the upper extremities. She is fully
capable of learning, remembering, and performing
simple and detailed work tasks, which are
performed in a routine, predictable, and low
stress work environment, defined as one in which
there is a regular pace, few work place changes,
and no "over the shoulder" supervision. She may
have occasional contact with supervisors,
8 - OPINION AND ORDER

coworkers, and the public.
Tr. 20.
At Step Four the ALJ found Plaintiff does not have any past
relevant work experience.

Tr. 23.

At Step Five the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy.

Tr. 24.

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION
Plaintiff asserts the ALJ erred at Step Five when he found
Plaintiff can perform jobs that exist in significant numbers in
the national economy.
As noted, if the Commissioner reaches Step Five, he 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).

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

The burden then shifts to

the Commissioner to show a significant number of jobs exist in
the national economy that the claimant can perform.
Lockwood, 616 F.3d at 1071.

See

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.
§ 416.920(g)(1).
9 - OPINION AND ORDER

20 C.F.R.

Here the ALJ found Plaintiff could perform the jobs of
Bakery Worker and Children’s Attendant.

Plaintiff asserts the

ALJ erred when he reached those conclusions because there are not
enough Bakery-Worker jobs in the national economy to constitute a
“significant number” and the job of Children’s Attendant may
require an individual to lift more than 20 pounds.
I.

Bakery Worker
At the hearing the VE testified an individual with

Plaintiff’s limitations could perform the job of Bakery Worker,
which has 14,900 jobs nationally.

Plaintiff, however, asserts

14,900 jobs is not a “significant number,” and, therefore, the
ALJ erred when he concluded Plaintiff is not disabled because she
could perform that job.
42 U.S.C. § 423(d)(2)(A) provides:
An individual shall be determined to be under a
disability only if [her] physical or mental
impairment or impairments are of such severity
that [she] is not only unable to do [her] previous
work but cannot . . . engage in any other kind of
substantial gainful work which exists in the
national economy. . . . [W]ork which exists in
the national economy means work which exists in
significant numbers either in the region where
such individual lives or in several regions of the
country.
Citation omitted.

Although the Ninth Circuit has “never set out

a bright-line rule for what constitutes a ‘significant number’ of
jobs,” a “comparison to other cases is instructive.”
Astrue, 700 F.3d 386, 389 (9th Cir. 2012).
10 - OPINION AND ORDER

Beltran v.

The Ninth Circuit

concluded in Beltran that the ALJ erred when he found the
plaintiff could perform a significant number of jobs in the
national economy when the ALJ found “there existed only 135 jobs
regionally or 1,680 jobs nationally that [the plaintiff] could
perform.”

Id. at 389.

Similarly, in De Rivera v. Berryhill, 710

F. App'x 768, 769 (9th Cir. 2018), the VE testified there were
“approximately . . . 5,000 [conveyor-line bakery worker] jobs
nationally.”

The Ninth Circuit concluded “[a]lthough we have

never set out a bright-line rule for what constitutes a
significant number of jobs, it is not clear that these amounts
are sufficient.”

Id. (quotations omitted).

In Gutierrez v.

Commissioner of Social Security, however, the Ninth Circuit
concluded “25,000 national jobs” was a significant number of jobs
and satisfied the Commissioner’s burden at Step Five.
518, 528-29 (9th Cir. 2014).

740 F.3d

In addition, several district

courts in the Ninth Circuit have held between 12,300 and 15,000
jobs is a significant number of jobs.

See, e.g., Mark M. v.

Comm'r, No. 3:19-CV-00495-MC, 2020 WL 7695848, at *4 (D. Or. Dec.
28, 2020)(“855 counter-clerk jobs in addition to the 13,500
call-out operator jobs are a significant number”); Davis v.
Comm'r, No. 1:17-cv-00621-SAB, 2018 WL1779341, at *5-*6 (E.D.
Cal. Apr. 12, 2018)(finding 15,000 jobs in the national economy
are a significant number); Montalbo v. Colvin, 231 F. Supp. 3d
846, 863 (D. Haw. 2017)(finding 12,300 jobs are a significant
11 - OPINION AND ORDER

number); Peck v. Colvin, No. 12-577, 2013 WL3121280, at *5 (C.D.
Cal. June 19, 2013)(finding 14,000 jobs in the national economy
are a significant number).

Thus, the 14,900 Bakery-Worker jobs

fall within the parameters of the comparative cases.
In light of the discretion afforded to the ALJ when
determining whether the number of particular jobs that exist in
the national economy is significant, the Court concludes the ALJ
did not err at Step Five when he concluded the job of Bakery
Worker exists in significant numbers in the national economy.
II.

Children’s Attendant
The Court has concluded the ALJ did not err when he found

Plaintiff could perform the job of Bakery Worker, and, therefore,
the Court need not decide whether the ALJ erred when he found
Plaintiff could perform the job of Children’s Attendant because
any error as to that finding would be harmless.

See Garner v.

Saul, 805 F. App'x 455, 459 (9th Cir. 2020)(the ALJ’s finding of
one job that exists in significant numbers in the national
economy was a sufficient Step Five finding).

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the

12 - OPINION AND ORDER

Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 27th day of April, 2021.

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

13 - OPINION AND ORDER