The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
MICHAEL S.,1
Plaintiff,
Civ. No 1:22-cv-00197-AA
OPINION & ORDER
v.
SOCIAL SECURITY ADMINISTRATION,
Defendant.
_______________________________________
AIKEN, District Judge:
Plaintiff Michael S. seeks judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying benefits. The decision of
the Commissioner is REVERSED and REMANDED for payment of benefits.
BACKGROUND
On December 3, 2019, plaintiff filed a Title II application for a period of
disability and disability insurance benefits, alleging disability beginning December
1 In the interest of privacy, this opinion uses only first name and the initial of the
last name of the non-governmental party or parties. Where applicable, this opinion
uses the same designation for a non-governmental party’s immediate family
member.
22, 2017. Tr. 13. The claim was denied initially on September 22, 2020, and upon
reconsideration on December 2, 2020. Id. Later at plaintiff’s request, a hearing by
telephone was held before an Administrative Law Judge (“ALJ”) on October 7, 2021,
because of the extraordinary circumstances presented by the Coronavirus Disease
2019 (COVID-19) Pandemic. Id. On November 3, 2021, the ALJ issued a decision
finding plaintiff not disabled through his date last insured, June 30, 2019. Tr. 26.
On January 5, 2022, the Appeals Council denied review, making the ALJ’s decision
the final decision of the Commissioner. Tr. 1. This appeal followed.
DISABILITY ANALYSIS
Plaintiff 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, 648 F.3d 721, 724 (9th Cir.
2011).
The five-steps are: (1) Is the claimant presently working in a
substantially gainful activity? (2) Is the claimant’s impairment severe?
(3) Does the impairment meet or equal one of a list of specific
impairments described in the regulations? (4) Is the claimant able to
perform any work that he or she has done in the past? and (5) Are there
significant numbers of jobs in the national economy that the claimant
can perform?
Id. at 724-25; see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Bustamante,
262 F.3d at 953. The Commissioner bears the burden of proof at step five. Id. 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 (9th Cir. 1999). 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 953-54.
THE ALJ’S FINDINGS
The ALJ performed the sequential analysis. At step one, the ALJ found that
plaintiff had not engaged in substantial gainful activity since the alleged onset date,
December 22, 2017, through his last date insured, June 30, 2019. Tr. 15.
At step two, the ALJ found that plaintiff had the following severe impairments
through his last date insured: lumbar degenerative disc disease with stenosis,
thoracic degenerative disc disease with spondylosis, left shoulder impingement
syndrome, right medical epicondylitis, left medical epicondylitis, right trochanteric
pain syndrome, right patellofemoral pain syndrome, migraine headaches, and left leg
numbness. Id. At step three, the ALJ found that plaintiff did not have an impairment
or combination of impairments that met or medically equaled a listed impairment.
Tr. 17.
The ALJ found plaintiff had the residual functional capacity (“RFC”) to
perform light work with the following additional limitations: he can frequently
operate hand controls, reach, push, pull, handle, finger, and feel with both upper
extremities; he can occasionally push or pull or operate foot controls with both lower
extremities; he can occasionally kneel, crouch, stoop, balance, and crawl; he can never
climb ladders, ropes, and scaffolds and can never be exposed to unprotected heights
and moving mechanical parts; he requires a cane to ambulate; he can tolerate
occasional exposure to vibration; he is able to understand, carry-out, and remember
simple instructions, and make simple work-related decisions; he will be off task 10%
of the workday and will be absent one day per month. Tr. 18.
At step four, the ALJ found plaintiff was unable to perform any past relevant
work as a basic entry man in the army where he performed very heavy-duty work.
Tr. 25. At step five, the ALJ determined that through the last date insured, there
were jobs that existed in significant numbers in the national economy that plaintiff
could have performed including mail clerk, office helper, and routing clerk. Tr. 25-
26. As a result, the ALJ found that plaintiff was not disabled between the alleged
onset date and the date last insured. Tr. 26.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if the decision is
based on proper legal standards and the legal findings are supported by substantial
evidence in the record. Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004).
Substantial evidence “means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (citation and internal quotation marks omitted). In reviewing the
Commissioner’s alleged errors, the court must weigh “both the evidence that supports
and detracts from the [Commissioner’s] conclusion.” Martinez v. Heckler, 807 F.2d
771, 772 (9th Cir. 1986).
When the evidence before the ALJ is subject to more than one rational
interpretation, courts must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198
(citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court,
however, cannot affirm the Commissioner’s decision on a ground that the agency did
not invoke in making its decision. Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir.
2006). Finally, a court may not reverse an ALJ’s decision on account of an harmless
error. 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
U.S. 396, 409 (2009).
DISCUSSION
Plaintiff alleges the ALJ erred by finding that plaintiff could perform other
work when the vocational expert testified that limitations accommodated in the RFC
would preclude employment. In the alternative, plaintiff also asserts that ALJ erred
by improperly discounting his subjective symptom testimony, and improperly
discounting the lay witness testimony of plaintiff’s wife.
I. Vocational Expert Testimony
James Radke (“Radke”) presented testimony as the vocational expert. During
his testimony, The ALJ asked Radke if there were jobs in the national economy that
an individual of plaintiff’s age, education, and work experience could perform, if the
individual is off task 10% of the workday and absent one day monthly. Tr. 57. Radke
testified that such an individual would be performing “right on the edge of
maintaining their employment.” Id.
On cross-examination, plaintiff’s counsel asked Radke to clarify his response
to the ALJ’s question, asking if an individual would be unable to maintain
employment if “off task 10% of the workday and absent one day a month” or if he
meant “off task 10% of the workday or absent one day a month.” Tr. 59. Radke
responded “Well it would be either.” Id. Radke stated that a combination of the two
would lead to termination: “If you were off task let’s just say 10.5 percent per day, or
averaging 1.2 days off per month, it would be my opinion that either of those would
lead to a lack of persistence in keeping his job, and certainly in combination they
would lead to likely termination.” Id.
In the RFC assessment, the ALJ found plaintiff’s limitations included being off
task 10% of the workday and absent one day per month. Tr. 18. The ALJ determined
that plaintiff was able to perform the requirements of representative occupations
nationally, including mail clerk, office helper, and routing clerk. Tr. 26. The ALJ
found that plaintiff was capable of making a successful adjustment to other work that
existed in significant numbers in the national economy, and thus plaintiff was “not
disabled.” Id.
Plaintiff asserts that the ALJ erred in finding that plaintiff could perform other
work, when Radke had testified that the limitations noted in plaintiff’s RFC
assessment precluded employment. The ALJ stated that plaintiff was limited to 10%
off task and 1 day off per month, yet found plaintiff could adjust to light work, despite
Radke’s uncontroverted testimony that, in combination, such a limitation would
preclude plaintiff’s employment. Plf.’s Brief at 6.
Plaintiff claims that the ALJ erred in adopting the vocational expert’s answer
to a critical question, which established unemployability, yet still found that plaintiff
could perform other work, in conflict with the vocational expert’s testimony and thus
the ALJ incorrectly found that plaintiff “could perform other work.” Plaintiff argues
that accepting Radke’s uncontroverted testimony should result in remand for
payment of benefits.
Defendant responds that Radke’s testimony shows that limitations are
disabling if a person is off task more than 10% of the time and/or missed more than 1
day a month and that plaintiff’s limitations were below the threshold. Def.’s Brief at
3. However, Defendant does not distinguish between “being off task more than 10%
of the time and more than 1 absence a month” and “being off task 10% of the time or
more than 1 absence a month.”
Remand for benefits is appropriate where the vocational expert concludes that
an individual with the claimant's limitations would be unable to perform competitive
employment, and that testimony is not properly credited. Smith v. Saul, 820 F. App'x
582, 586 (9th Cir. 202); see also Ellen O. v. Comm'r, Soc. Sec. Admin., No. 1:21-CV-
01577-YY, 2023 WL 4864439, at *11 (D. Or. July 31, 2023) (same).
Here, the ALJ’s finding that plaintiff was not disabled, but would be “off task
10% of the workday” and that plaintiff would be “absent one day a month”
contradicted the vocational expert’s testimony and resulted in error. See Massachi v.
Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007); SSR 00-4p (Dec. 4, 2000) (The failure to
explain how the conflict was resolved was harmful error). If combined, the 2
limitations established unemployability. If the ALJ wanted to reject the vocational
consultant’s testimony, he had to express his intent to do so and explain how he had
come to that conclusion. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.
2015). Instead, the ALJ asserted that he was relying on the vocational consultant’s
testimony, based on the consultant’s expertise and experience. Tr. 26. The
limitations in the hypothetical question, the RFC, and the vocational consultant’s
testimony, all matched, establishing unemployability, inability to perform SGA, and
so disability, mandating that this Court find for plaintiff. See Trevizo v. Berryhill,
871 F.3d 664, 683 (9th Cir. 2017 (remanding for payment of benefits where the
vocational expert had offered testimony about the effect of the relevant limitations on
the individual’s ability to perform work activity). Accordingly, the ALJ’s
determination was not supported by substantial evidence in the record.
II. Remedy
Because the Court determines that the ALJ erred in in assessing a residual
functional capacity assessment and relying on a hypothetical question that exceeded
the off-task/absence tolerances testified to by the vocational consultant, it does not
reach plaintiff’s alternative arguments.
Thus, for the reasons set forth above, the Court concludes that the ALJ’s
decision contains harmful errors and must be reversed and remanded. The decision
whether to remand for further proceedings or for the immediate payment of benefits
lies within the discretion of the court. Triechler v. Comm’r, 775 F.3d 1090, 1101-02
(9th Cir. 2014). A remand for award for benefits is generally appropriate when: (1)
the ALJ failed to provide legally sufficient reasons for rejecting evidence; (2) the
record has been fully developed, there are no outstanding issues that must be
resolved, and further administrative proceedings would not be useful; and (3) after
crediting the relevant evidence “the record, taken as a whole, leaves not the slightest
uncertainty” concerning disability. Id. at 1100-01 (internal quotation marks and
citations omitted).
The ALJ's decision addressed whether plaintiff retains residual functional
capacity to perform light work. The ALJ's determination that plaintiff retains the
ability to perform light work was in error; because the vocational expert testimony
established that an individual with plaintiff’s limitations cannot perform a sedentary
job or any other substantial gainful work that exists in the national economy. Thus,
we need not return the case to the ALJ to make a residual functional capacity
determination a second time.
CONCLUSION
Under sentence four of 42 U.S.C. §405(g), the decision of the Commissioner is
REVERSED and REMANDED for the immediate payment of benefits. This case is
DISMISSED. Judgement shall be entered accordingly.
It is so ORDERED and DATED this _1_2_t_h day of ____S_e_p_t_e_m_b__e_r_ 2023.
/s/Ann Aiken
ANN AIKEN
United States District Judge