United States District Court, E.D. California
ORDER REMANDING THE ACTION PURSUANT TO SENTENCE FOUR
OF 42 U.S.C. § 405(G) ORDER DIRECTING ENTRY OF JUDGMENT
IN FAVOR OF PLAINTIFF RAYLENE DUKE AND AGAINST DEFENDANT
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
Duke asserts she is entitled to a period of disability and
disability insurance benefits under Title II of the Social
Security Act. Plaintiff argues the administrative law judge
erred in relying upon the testimony of a vocational expert,
and seeks judicial review of the denial of her application
for benefits. Because the ALJ failed to resolve a conflict
between the vocational expert's testimony and the
Dictionary of Occupational Titles, the matter is
REMANDED pursuant to sentence four of 42
U.S.C. § 405(g) for further proceedings.
filed an application for benefits on December 27, 2012,
alleging disability beginning December 21, 2012. (Doc. 7-3 at
12) Her application was denied initially and upon
reconsideration. (Id.) Plaintiff requested a
hearing, and she testified before an ALJ on December 15,
2014. (Id. at 12, 32) The ALJ determined Plaintiff
was not disabled and issued an order denying benefits on
December 31, 2014. (Id. at 12-24) When the Appeals
Council denied Plaintiff's request for review of the
decision on April 20, 2016 (id. at 2-4), the
ALJ's findings became the final decision of the
Commissioner of Social Security (“Commissioner”).
courts have a limited scope of judicial review for disability
claims after a decision by the Commissioner to deny benefits
under the Social Security Act. When reviewing findings of
fact, such as whether a claimant was disabled, the Court must
determine whether the Commissioner's decision is
supported by substantial evidence or is based on legal error.
42 U.S.C. § 405(g). The ALJ's determination that the
claimant is not disabled must be upheld by the Court if the
proper legal standards were applied and the findings are
supported by substantial evidence. See Sanchez v.
Sec'y of Health & Human Serv., 812 F.2d 509, 510
(9th Cir. 1987).
evidence is “more than a mere scintilla. It 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) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as
a whole must be considered, because “[t]he court must
consider both evidence that supports and evidence that
detracts from the ALJ's conclusion.” Jones v.
Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
qualify for benefits under the Social Security Act, Plaintiff
must establish he is unable to engage in substantial gainful
activity due to a medically determinable physical or mental
impairment that has lasted or can be expected to last for a
continuous period of not less than 12 months. 42 U.S.C.
§ 1382c(a)(3)(A). An individual shall be considered to
have a disability only if:
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work,
but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a
claimant to establish disability. Terry v. Sullivan,
903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant
establishes a prima facie case of disability, the burden
shifts to the Commissioner to prove the claimant is able to
engage in other substantial gainful employment. Maounois
v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).
achieve uniform decisions, the Commissioner established a
sequential five-step process for evaluating a claimant's
alleged disability. 20 C.F.R. §§ 404.1520,
416.920(a)-(f). The process requires the ALJ to determine
whether Plaintiff (1) engaged in substantial gainful activity
during the period of alleged disability, (2) had medically
determinable severe impairments (3) that met or equaled one
of the listed impairments set forth in 20 C.F.R. § 404,
Subpart P, Appendix 1; and whether Plaintiff (4) had the
residual functional capacity to perform to past relevant work
or (5) the ability to perform other work existing in
significant numbers at the state and national level.
Id. The ALJ must consider testimonial and objective
medical evidence. 20 C.F.R. §§ 404.1527, 416.927.
to this five-step process, the ALJ determined Plaintiff did
not engage in substantial gainful activity after the alleged
onset date of December 21, 2012. (Doc. 7-3 at 14) At step
two, the ALJ found Plaintiff's severe impairments
included: “degenerative disc disease of the cervical
and lumbar spine as well as obesity.” (Id.) At
step three, the ALJ determined Plaintiff did not have an
impairment, or combination of impairments, that met or
medically equaled a Listing. (Id. at 17) Next, the
[T]he claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) with the
following modifications: She has the ability to stand and
walk a maximum of four hours out of an eight hour day with
the use of a walker. She has the ability to sit up to six
hours out of an eight hour day; occasionally balance, stoops,
kneel, crouch, crawl and climb stairs; but never climb
ladders. She requires work that involves no exposure to
vibrations such as hand tools or hazards such as unprotected
heights, open or moving machinery parts and moving motor
(Id. at 18-19) Based upon the vocational
expert's testimony, the ALJ determined “there are
jobs that exist in significant numbers in the national
economy that the claimant can perform, ” such as office
helper, order caller, and small parts assembler.
(Id. at 22-23) Consequently, the ALJ concluded