# Tucker v. Commissioner Social Security Administration

> District Court, D. Oregon · March 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10395954

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 22, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JOEL T.! □
Plaintiff, Civ. No. 3:21-cv-00068-CL
V. oe OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY .
ADMINISTRATION,
Defendant. .

CLARKE, United States Magistrate Judge.
Plaintiff Joel T. (“Plaintiff”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying his applications
for supplemental security income (“SSI”) under Title XVI of the Social Security Act (the “Act”).
Court has jurisdiction to review the Commissioner’s decision pursuant to42U.S.C.§ |
_ 405(g). All parties have consented to allow a Magistrate Iudge to enter final orders and judgment

_ in this-case in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). See ECF No. 6. For the

_ teasons provided below, the Commissioner’s decision is REVERSED and this case is
REMANDED for further proceedings.

‘In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name
of the non-governmental party or parties in this case. .

PROCEDURAL BACKGROUND
Plaintiff filed an application for Disability Insurance Benefits (“DBI”) under Title II in
May 2015 with an alleged onset date of January 1, 2010. Tr. 374—80°. Plaintiff also filed an
application for SSI in May 2015, with an alleged onset date of January 1, 2010. Tr. 381-87.
Plaintiff? s applications were initially denied in January 2016, and again upon reconsideration in
April 2016. Tr. 77-153. Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”), Tr. 240-41, and a hearing was held on March 27, 2018. Tr.180. On June 21, 2018, the
ALI issued a decision finding Plaintiff not disabled within the meaning of the Act. Tr. 166. The
Plaintiff then timely filed an appeal with the Appeals Council, Tr. 300-03, where the case was
remanded for further proceedings. Tr. 173-75. A subsequent hearing was held on February 26,
2020. Tr. 180. At the hearing, Plaintiff amended his alleged onset date to May 1, 2015. Tr. 181.
On March 31, 2020, the ALJ issued a decision finding Plaintiff not disabled within the meaning
the Act. Tr. 195. The Appeals Council granted a request for review on September 28, 2020,
Tr. 8, and issued a partially favorable opinion on December 3, 2020, finding Plaintiff became ~
disabled on March 31, 2020, but was not disabled prior to this date. Tr. 12. Plaintiff? stimely .
appealed followed.

. FACTUAL BACKGROUND ©

Plaintiff was 49 years.old on the amended alleged onset date. Tr. 9. He has an eighth-

_ grade education and has past relevant work as an Asphalt Worker, but is no longer able to □
perform the past relevant work. Tr. 193-94, 445. Plaintiff alleges disability based on carpal
tunnel, severe arthritis, poor memory, and a stroke in 2013. Tr. 444.

Citations are to the Administrative Record. ECF No. 11.

_ DISABILITY ANALYSIS
A claimant is disabled if he or 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...
§ 423(d)(1)(A). “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. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially
dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks
the following series of questions:
1. Is the claimant performing “substantial gainful activity”? 20 CFR.
- §§ 404.1520(a)(4)@); 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F:R.
§§ 404.1520(a)(4)G); 416.920(a)(4)q). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2, Is the claimant’s impairment “severe” under the Commissioner’s
- regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(i). Unless
expected to result in death, an impairment is “severe” if it significantly
‘limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted
or must be expected to last for a continuous period of at least 12 months.
20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe
- impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii);
416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404; Subpart P, Appendix 1? If so,
* ‘then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i1);
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds to the “residual functional
capacity” (“RFC”) assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant’s RFC. This is an assessment of work-

related activities that the claimant may still perform on a regular and
continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e);
416.945(b)-(c). After the ALJ determines the clatmant’s RFC, the
analysis proceeds to step four. □
4. Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is -
. not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v);
404.1560(c); 416.960(c). If the claimant cannot perform such work, he or
_ She is disabled.
See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. /d. at 954. The
Commissioner bears the burden of proof at step five. Jd. at 953-54. At step five, the

Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (Oth Cir.
1999) (internal citations omitted); see also 20 C.F.R. 8§ 404.1566; 416.966 (describing “work
which exists in the national economy”). If the Commissioner fails to meet this burden, the
claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v): 416.920(a)(4)(v). If} however, the

Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55;
Tackett, 180 F.3d at 1099.
THE ALJ’S DECISION

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since the date of his application. Tr. 183. At step two, the ALJ found that Plaintiff had the
following severe impairments: carpal tunnel syndrome, degenerative joint disease of the knees, ~

chronic obstructive pulmonary disease, adjustment disorder, cannabis use disorder, and alcohol
‘use disorder. Jd, At step three, the ALJ found that Plaintiff did not have an impairment or
combination thereof that met or medically equaled the severity of a listed impairment. Tr. 184.
The ALJ found that Plaintiff had the RFC to perform light work with the following limitations:

. [Plaintiff] can occasionally lift/carry and push/pull 20 pounds, and
frequently lift/carry and push/pull 10 pounds. He can stand/walk for
a total of six hours total in an eight-hour workday. He needs the use
of a cane when walking long distance or on uneven terrain. He can
. ~ sit for six hours in an eight-hour workday. He can occasionally □
operate foot controls bilaterally. He can occasionally handle
bilaterally. He can frequently finger and feel bilaterally: He can
occasionally push/pull with the upper extremities. He can
occasionally climb ramps/stairs. He can never climb ladders, ropes
or scaffolds. He can occasionally stoop and kneel. He can never
crouch or crawl. He should not be exposed to unprotected heights or
moving mechanical parts. He should not be required to operate
motor vehicle as part of his work duties. He should avoid
concentrated exposure to atmospheric conditions and extreme cold.
He should have no exposure to vibration. He is limited to simple. ©
routine tasks. He can have occasional interaction with the public.
Tr. 187. At step four, the ALJ determined that Plaintiff has past relevant work and is now unable

to perform any past relevant work. Tr. 193-94. At step five, the ALJ found, in light of Plaintiffs □□
age, education, work experience, and RFC, a significant number of jobs existed in the national -

economy such that Plaintiff could sustain employment despite his impairments. Tr. 194. The ALJ □

thus found Plaintiff was not disabled within the meaning of the Act. Tr. 195. .
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the legal findings are supported by substantial evidence in the record. 42 □

U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). ‘“Substantial evidence’ means
than a mere scintilla but less than a preponderance,’ or more clearly stated, ‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”” Bray v.
Comm Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53
F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner’s alleged errors, this 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). .
If the decision of the Appeals Council is the final decision of the Commissioner, this
Court must review the decision of the Appeals Council to determine whether that decision is

supported by substantial evidence. Howard v. Heckler, 782 F.2d 1484 (th Cir. 1986). Where the
evidence béfore the ALJ or Appeals Council is subject to more than one rational interpretation, □
the Commissioner’s conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53
at 1041). “However, a reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a
reviewing court “cannot affirm the [Commissioner’s] decision on a ground that the
[Administration] did not invoke in making its decision.” Stout v. Comm ’r Soc. Sec. Admin., 454
F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse the .
Commissioner’s decision on account of an error that is harmless. Id at 1055-56. “[T]he burden

of showing that an error is harmful normally falls upon the party attacking the agency’s
determination.” Shinseki v. Sanders, 556 US. 396, 409 (2009). , □
Even where findings are supported by substantial evidence, “the decision should be set
aside if the proper legal standards were not applied in weighing the evidence and making the
decision.” Flake vy. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42
U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript
record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or
without remanding the case for a rehearing.

DISCUSSION _

Plaintiff presents a single issue for review: whether the ALJ erred at step five by relying.
on testimony from the vocational expert (“VE”) to support finding that Plaintiff could perform
work that exists in significant numbers in the national economy.? For the reasons that follow, the
Court concludes that reversal and remand for further proceedings is warranted in this case. .
At step five of the sequential disability analysis, the ALI is “responsible for providing
evidence that demonstrates that other work exists in significant numbers in the national _ □
economy” that could be done by an individual with the same RFC, age, education, and work .
experience as the claimant. 20 C.F.R. §§ 404.1560(c)(2). The ALJ can satisfy this burden by
taking the testimony of a VE. Desrosiers v. Secretary of Health and Hum. Servs., 846 F.2d 573,

578 (9th Cir. 1988). The ALJ may pose detailed hypothetical questions to the VE to establish
what jobs, if any, the claimant can do. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014),
The VE then translates the ALJ’s scenarios into “realistic job market probabilities” by testifying
about what kinds of jobs the claimant can still perform and whether there is a sufficient number □

_? Plaintiff assigns error only with respect to the “unfavorable” portion of the Appeals Council decision.
Pl.’s Br. 3, ECF No. 18. ,

of those jobs available in the economy. Jd. (quoting Tackett, 180 F.3d at 1101). The Ninth
Circuit has not created “a bright-line rule for what constitutes a ‘significant number’ of jobs” in
the national economy. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). However, the Ninth
Circuit has yet to endorse a number below 25,000. See Gutierrez v. Comm ’r of Soc. Sec., 740
F.3d 519, 529 (9th Cir. 2014) (determining that 25,000 jobs available nationwide was a “close
call” but nevertheless constituted a significant number).

“TT ]he Social Security Administration relies primarily on the Dictionary of Occupational
Titles [DOT] for information about the requirements of work in the national economy,” and a
VE’s testimony generally should be consistent with it. Massachi v. Astrue, 486 F.3d 1149, 1153
(9th Cir. 2007). “[I]n the absence of any contrary evidence, a VE’s testimony is one type of job
information that is regarded as inherently reliable; thus, there is no need for an ALJ to assess its
reliability.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017).. When there is a conflict
between the DOT. and 4 VE’s testimony, neither automatically prevails over the other. Jd. The
ALJ must determine whether a conflict exists and, if so, determine whether the expert’s
explanation for the conflict is reasonable and whether there isa basis for relying on the expert □
rather than the DOT. Id. :
Duting Plaintiff's February 2020 hearing, the VE testified that Plaintiff would be able to
perform the following occupations: (1) laminating machine offbearer, with approximately
106,000 available jobs; (2) kosher inspector, with approximately 60,000 available jobs; and (3)
assembly machine tender, with approximately 50,000 available jobs. Tr. 51-52. Plaintiffs
counsel asked the VE about the source of his estimates, and the VE responded he was basing his
information on the Bureau of Labor Statistics (the “BLS”’) and his own experience. Tr. 55. After
the hearing, Plaintiff submitted a post-hearing memorandum objecting to the VE’s testimony

- regarding the available number of jobs in the national economy, showing that in his search of
jobs using the “Job Browser Pro” program’ the job numbers were 213 jobs available for
laminating machine offbearer, 390 jobs available for kosher inspector, and 1,879 jobs available
for assembly machine operator. Tr. 5 97. Plaintiff asserts that the ALJ thus improperly found
there were jobs that exist in significant numbers in the national economy that Plaintiff can
perform. Jd. The Notice of the Appeals Council Action states that the Appeals Council
“considered the written record that was before the Administrative Law Judge and the testimony
at the hearing, and the contentions submitted in the request for review.” Tr. 370. The Decision of

the Appeals Council states “[t]he Appeals Council adopts the Administrative Law Judge’s
finding that from May 1, 2015, the application date, through March 30, 2020, the day before the
hearing decision, there are jobs that exist in significant numbers in the national economy that the
claimant can perform,” relying upon thé VE's testimony. Tr. 9-10.
Plaintiff asks the Court to review the post-hearing memorandum as evidence submitted to
the ALI on March 9, 2020, after the hearing on February 26, 2020, but before the decision was
rendered on March 31, 2020. Tr. 597.

“Where the Appeals Council was required to consider additional evidence, but failed to
do so, remand to the ALJ is appropriate so that the ALJ can reconsider its decision in light of the
additional evidence.” Taylor v. Comm’r of Soe. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir.
2011). Under the relevant regulations, the Appeals Council is required to review a case if the
Appeals Council “receives additional evidence to review that is new, material, and relates to the
period on or before the date of the hearing decision, and there is a reasonable probability that the
additional evidence would change the outcome of the decision.” 20 C.F.R. §§ 404.970(a)(5),
416.1470(a)(5). Additionally, “in reviewing decisions based on an application for benefits, the

Appeals Council will only consider additional evidence under paragraph (a)(5) of this section if

[the claimant] show[s] good cause for not informing us about or submitting” written evidence no

later than five business days before the date of the scheduled hearing. 20 C.F.R. §§ 404.970(b),
416.1470(b); see also 20 C.F.R. §§ 404.935(a), 416.1435(a) (requiring parties to inform the
Commissioner about or submit any written evidence no later than five business days before the
date of the scheduled hearing). Good cause can be shown. an “unusual, unexpected, or □

unavoidable circumstance beyond [the claimant’s] control prevented [the claimant] from
informing us about or submitting the evidence earlier.” 20 C.F.R. §§ 404.970(b)(3),
416.1470(b)(3). :

The Ninth Circuit has held that a claimant who is represented by counsel “must, at a
minimum: raise the issue of the accuracy of the [vocational] expert’s estimates at some point
during administrative proceedings to preserve the challenge on appeal in federal district court.”
Shaibi v. Berryhill, 883 F.3d 1102; 1003 (9th Cir. 2017). The Ninth Circuit has recognized that
“a claimant will rarely, if ever, be in a position to anticipate the particular occupations a VE
might list and the corresponding job numbers to which a VE might testify at a hearing.” Jd. at
1110. “It is enough to raise the job-numbers issue in a general sense before the ALJ. A claimant □
may do’so by inquiring as to the evidentiary basis for a VE’s estimated job numbers[.]” Td.
Plaintiff asserts that his “Job Browser Pro” report is evidence that would likely have
changed the outcome of the ALJ’s decision. Pl.’s Op. Br. 10-11, ECF No. 18. The Court agrees.

The difference between the VE’s estimates of nearly 260,000 available jobs nationwide and
Plaintiff's estimate of 2,482 jobs available nationwide is a sufficiently wide gap that, if properly
reconciled, could have affected the ALJ’s decision. While the Ninth Circuit has not established a
minimum number of jobs that qualifies as “significant” in the national economy, there is a

reasonable probability that the ALJ would have decided the fifth step differently based on
Plaintiff’s estimate of 2,482 jobs available nationwide. See, e.g., Gutierrez v. Comm’r of Soc.
Sec., 740 F.3d 519, 529 (9th Cir. 2014) (determining that 25,000 jobs available nationwide was a
“close call”); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012) (determining that 1,680 jobs
available nationwide did not constitute a “significant” number of jobs). Furthermore, because
Plaintiff could only have asked the VE about the source of his estimates during the hearing, the
Court finds that Plaintiff sufficiently raised the job-numbers issue in a general sense before the

ALI. See Shaibi, 883 F.3d at 1110. Plaintiff could not have anticipated the specific occupations

_ the VE listed at the February 2020 hearing. Jd. As such, Plaintiff had good cause for not
submitting the “Job Browser Pro” reports five days prior to the hearing,

Here, the Plaintiff submitted additional evidence to the ALJ, but not to the Appeals
Council. On Plaintiffs requested review of this case by the Appeals Council there is no

. indication Plaintiff ever identified the additional evidence in his submissions to the Appeals
Council, but only in their brief submitted to this Court. The Appeals Council is not required to
consider additional evidence the Plaintiff fails to submit to the Appeals Council. See Taylor, 659
F.3d at 1233.
A reviewing court has discretion to remand an action for further proceedings or for a □ □
finding of disability and an award of benefits. See, e.g., Stone v. Heckler, 761 F.2d 530, 533 (9th
Cir. 1985). Whether an action is remanded for an award of benefits or for further proceedings
depends on the likely utility of additional proceedings. Harman y. Apfel, 211 F.3d 1172, 1179 □
Cir. 2000). In determining whether an award of benefits is warranted, the court conducts the
“three-part credit-as-true” analysis. Garrison, 759 F.3d at 1020. Under this analysis the court
considers whether: (1) the ALJ has failed to provide legally sufficient reasons for rejecting

evidence; (2) the record has been fully developed and further proceedings would serve no useful
purpose; and (3) if the improperly discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on-remand. See Dominguez v. Colvin, 808 F.3d 403, 407
(9th Cir. 2015),
As to the second requisite, the Ninth Circuit has held that remanding for proceedings
rather than for an immediate payment of benefits serves a useful purpose where “the record has

[not] been fully developed [and] there is a need to resolve conflicts and ambiguities.” Treichler
v. Comm ’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (internal quotations and
citations omitted). Here, there remains a conflict between the job numbers the VE provided in his
testimony and the job numbers Plaintiff submitted to the ALJ. As a result, the ALJ’s decision.
was not supported by substantial evidence. Remanding for proceedings would allow the ALJ to |
reconcile the differences between Plaintiff's submission and the VE’s testimony. While the
Appeals Council was not required to review this evidence, the ALJ’s failure to do so calls for a
remand so that the ALI can reconsider the decision in light of the additional evidence. See
Taylor, 659 F.3d at 1233.
"CONCLUSION :

For the reasons discussed above, the Commissioner’s decision was not based on
substantial evidence. Accordingly, the Commissioner’s decision is REVERSED and this case
REMANDED pursuant to sentence four of 42 U.S.C. §405(g) for further pro seedings consistent
with this Opinion and Order. :
"IT IS SO ORDERED and DATED this 2 ay of

RKDZEARKE =>

United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395954. Public record. Not legal advice.