Scott

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JASON S.,1

Plaintiff, Case No. 1:25-cv-01267-AP

v. OPINION AND ORDER

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________

POTTER, United States Magistrate Judge:

Plaintiff Jason S. brings this action for judicial review of a final decision of the

Commissioner of Social Security denying his application for supplemental security income (SSI)

under Title XVI of the Social Security Act. This Court has jurisdiction under 42 U.S.C. § 405(g).

Plaintiff alleges that the Administrative Law Judge (ALJ) erred by failing to identify a

significant number of jobs that Plaintiff could perform. Pl.’s Br. 4-6, ECF No. 10. Plaintiff also

argues that not all the jobs identified can be performed by an individual with his residual

functional capacity. Pl.’s Br. 6-8. For the reasons outlined below, the Commissioner’s decision is

REVERSED and REMANDED.

1 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 in this case and any immediate family members of that

party.

1 – OPINION AND ORDER

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff applied for SSI on November 20, 2021, alleging disability since June 15, 2010.

Tr. 121. The claim was denied initially and upon reconsideration. Tr. 129, 139. Plaintiff

requested a hearing before an ALJ and appeared before the Honorable Joseph Brinkley on May

28, 2024. Tr. 70-102. In a written decision dated July 5, 2024, ALJ Brinkley determined that

Plaintiff was not disabled under the Social Security Act. Tr. 15-34. Plaintiff sought review from

the Appeals Council; the Appeals Council declined review. Tr. 1. He then filed this action for

judicial review.

Plaintiff is currently 41 years old. See Tr. 120. Plaintiff alleges disability due to

depression, anxiety, hearing voices, and left hip pain. Tr. 121. Plaintiff graduated from high

school and has no relevant previous work experience. Tr. 32.

STANDARD OF REVIEW

When reviewing the decision of the ALJ, district courts view questions of law de novo.

Obrien v. Bisignano, 142 F.4th 687, 693 (9th Cir. 2025). But when there is no legal error, the

denial of benefits will only be overturned if the ALJ’s decision “is not supported by substantial

evidence.” Id. (internal quotation and citation omitted). “Under the substantial-evidence

standard, a court looks to an existing administrative record and asks whether it contains

‘sufficien[t] evidence’ to support the agency's factual determinations.” Biestek v. Berryhill, 587

U.S. 97, 102 (2019) (citation omitted). This is not a high bar; substantial evidence is relevant

evidence that “a reasonable mind might accept as adequate to support a conclusion.” Id. (citation

omitted). The court may not substitute its judgment for that of the ALJ when the evidence could

2 – OPINION AND ORDER

support either affirming or reversing the ALJ’s decision. Parra v. Astrue, 481 F.3d 742, 746 (9th

Cir. 2007).

DISCUSSION

A person is disabled when they are unable “to engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can be expected

to result in death or 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). When determining if someone seeking benefits is

disabled, the ALJ applies a “five-step sequential evaluation process.” 20 C.F.R. §

404.1520(a)(4). If at any point in the five-step process the ALJ determines that the person is or is

not disabled, the process stops. Id.; see also Woods v. Kijakazi, 32 F.4th 785, 787 n.1 (9th Cir.

2022).

The first step looks at whether the claimant is doing “substantial gainful [work] activity;”

if they are, they are not disabled. 20 C.F.R. § 404.1520(a)(4)(i). The second step focuses on the

claimant’s physical or medical impairment; a claimant is not disabled unless they can show a

severe impairment that lasts at least a year or is expected to result in death. 20 C.F.R. §

404.1520(a)(4)(ii). At the third step, the ALJ asks whether the severity of the impairment meets

or equals one of the impairments listed by the Commissioner of Social Security. Id. §

404.1520(a)(4)(iii). If the impairment is equivalent to one of the listed impairments, the claimant

is presumptively disabled. Id. If not, the ALJ proceeds to the fourth step. Id. §

404.1520(a)(4)(iv). Prior to proceeding to steps four and five, the ALJ must determine the

residual function capacity. Id. § 404.1520(e). This analysis determines what a claimant can do on

a sustained basis despite their limitations. Id. §§ 404.1520(a)(4), 416.920(a)(4). Then, the fourth

3 – OPINION AND ORDER

step requires an analysis of the claimant’s part work and residual functioning; if the claimant can

still do their past relevant work, they are not disabled. Id. § 404.1520(a)(4)(iv). At the fifth step,

the question is whether given the claimant’s present abilities, there is another type of job they

can do; if the claimant can do another job, they are not disabled. Id. § 404.1520(a)(4)(v).

Plaintiff does not dispute any of the ALJ’s findings at steps one through four and finds

no error in how the ALJ addressed any of the evidence in the record. Instead, Plaintiff argues that

Defendant failed to meet their step five burden of identifying a significant number of jobs that

Plaintiff can perform with his limitations. Plaintiff also argues that even those jobs that the ALJ

identified are inconsistent with his RFC.

I. Significant Number of Jobs in the Economy

At step five, the ALJ determines if there is work that the Plaintiff can do. “Work exists in

the national economy when there is a significant number of jobs (in one or more occupations)

having requirements which you are able to meet with your physical or mental abilities and

vocational qualifications.” 20 C.F.R. § 416.966(b). If the ALJ cannot identify a significant

number of jobs that Plaintiff can perform, then the Plaintiff is disabled. Id. The Commissioner

bears the burden of proof at this step. 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Tackett v.

Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

Here, the ALJ identified three jobs that Plaintiff could perform with his RFC: document

preparer (14,000 jobs), ticket checker (8,500 jobs), and touch up screener, circuit board (1,200

jobs). Tr. 33. Plaintiff argues that 23,700 jobs is not a significant number in the national

economy. Pl.’s Br. 4-6. Plaintiff relies on Ninth Circuit precedent calling 25,000 nationwide jobs

“a close call.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014). In Gutierrez,

4 – OPINION AND ORDER

the Ninth Circuit compared previous cases finding that 64,000 nationwide jobs is significant and

that 1,680 nationwide jobs is not significant. Id. The court also noted that another circuit had

found that 10,000 nationwide jobs is significant. Id. (citing Johnson v. Chater, 108 F.3d 178, 180

(8th Cir. 1997). The Gutierrez court then held that 25,000 nationwide jobs is significant. Id.

Plaintiff reasons that because the national population has increased, although 25,000 jobs

was “a close call” in 2014, 23,700 was “no such close call in 2024”, when the ALJ issued his

decision. Pl.’s Br. 5. Courts in this District have found as few as 17,046 jobs to be significant.

Julie H. v. Comm’r, Soc. Sec. Admin., No. 6:17-CV-1490-AC, 2018 WL 7254706, at *5 (D. Or.

Nov. 14, 2018), report and recommendation adopted sub nom. Julie H. v. Berryhill, No. 6:17-

CV-1490-AC, 2019 WL 260852 (D. Or. Jan. 18, 2019); see also Stephanie O. v. Berryhill, No.

3:18-CV-0113-MC, 2019 WL 2713234, at *7 (D. Or. June 28, 2019) (relying on the reasoning in

Julie H. to find 17,408 jobs significant). However, other courts have come to the opposite

conclusion. See, e.g., Tara C. v. Comm’r Soc. Sec. Admin., No. 6:19-CV-00147-YY, 2020 WL

886297, at *5 (D. Or. Feb. 24, 2020) (finding that “On this record, it is unclear whether 21,002

jobs is ‘significant’ within the meaning of the Act.” and noting that other courts have found

fewer than 25,000 jobs significant when considered alongside regional numbers). Like in Tara

C., it is unclear here if 23,700 jobs is significant.

II. Jobs Identified by the ALJ

Plaintiff also argues that the ALJ erred by identifying jobs that conflicted with Plaintiff’s

RFC. Pl.’s Br. 6-8.

The ALJ found that Plaintiff “has the residual functional capacity to perform sedentary

work” with some additional limitations. Tr. 19. Relevant here, the ALJ found that Plaintiff “is

5 – OPINION AND ORDER

capable of performing short, simple, routine, repetitive tasks in two-hour intervals (SVP 2).” Tr.

19. Relying on vocational expert testimony, the ALJ then identified representative occupations

that Plaintiff could perform: document preparer, DOT #249.587-018 (14,000 jobs in the national

economy); ticket checker, DOT #219.587-0101 (8,500 jobs in the national economy); and touch

up screener, circuit board, DOT #726.684-110 (1,200 jobs in the national economy). Tr. 33.

“These jobs are performed at the sedentary level and have an SVP of 2 (unskilled).” Tr. 33.

Both Ticket Checker and Document Preparer require reasoning level 3. Dictionary of

Occupational Titles, 4th Ed. 1991. Plaintiff argues that this conflicts with the ALJ’s RFC finding

that limits Plaintiff to “short, simple, routine, repetitive tasks.” Pl.’s Br. 6 (citing Tr. 19).

Jobs with a reasoning level of 3 require a worker to “Apply commonsense understanding

to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems

involving several concrete variables in or from standardized situations.” Dictionary of

Occupational Titles, Appendix C, 4th Ed. 1991. The Ninth Circuit has held that “there is an

apparent conflict between the residual functional capacity to perform simple, repetitive tasks, and

the demands of Level 3 Reasoning.” Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015).

Defendant argues that any failure here is harmless. Def.’s Br. 5-6, ECF No. 12. To bolster

this argument, Defendant points out that although under SSR 00-4p the ALJ was required to

resolve any apparent conflicts between vocational expert testimony and the DOT, SSR 00-4p has

been replaced with SSR 24-3p which no longer requires that. Def.’s Br. 5. Therefore, Defendant

reasons, the ALJ would not be required to resolve this conflict upon remand.

6 – OPINION AND ORDER

The Court is not convinced. If Plaintiff could not actually perform these two jobs, as the

apparent conflict suggests, then the ALJ only identified 1,200 jobs in the national economy that

Plaintiff could perform. 1,200 jobs in the national economy is unequivocally not significant.

Here, where the ALJ only identified 23,700 jobs and there is an apparent conflict between

the vast majority of those jobs and Plaintiff’s RFC, the Court finds that Defendant did not meet

their step five burden of identifying a significant number of jobs that Plaintiff could perform.

III. Remedy

Plaintiff asks that the case be remanded for the sole purpose of making new step five

findings. Pl.’s Br. 9-10.

Because the ALJ erred, this Court may “affirm[], modify[], or revers[e] the decision of

the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42

U.S.C. § 405. Plaintiff argues that because he only challenged the ALJ’s step five findings, the

remand should be limited to new step five findings. Pl.’s Br. 9-10.

In support, Plaintiff cites to Brown v. Kijakazi, 11 F.4th 1008 (9th Cir. 2021). In Brown,

the court reviewed the ALJ’s partially favorable decision that found the plaintiff disabled as of

Aril 25, 2018, but not prior to that date as the plaintiff had argued. Id. at 1009. The Ninth Circuit

reasoned that because only a claimant “can file an action under § 205(g), the relief requested in

any such complaint will necessarily be limited to only those aspects of the case that are

unfavorable to the claimant.” Id. at 1010.

Here, however, the ALJ’s decision was entirely unfavorable; Plaintiff was found not

disabled. This case is remanded for further proceedings, but the Court declines to limit the

remand to only new step five findings. Accord Velazquez v. Bisignano, No. 24-3034, 2025 WL

7 – OPINION AND ORDER

2437493, at *1 (9th Cir. Aug. 25, 2025) (“Velazquez was not awarded benefits for any period of

his claimed disability. Although he may consider certain aspects of the ALJ's decision to be

‘favorable,’ such as distinct findings made as part of the ALJ's five-step sequential evaluation

process, Velazquez did not prevail on any part of his request for benefits.”).

CONCLUSION

The Commissioner’s decision is REVERSED and REMANDED for further proceedings.

IT IS SO ORDERED.

DATED this 1_4_t_h_ day of September, 2026.

/s/Amy E. Potter

Amy E. Potter

United States Magistrate Judge

8 – OPINION AND ORDER