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 ADOLOFO LUGO AND AGAINST DEFENDANT, THE
COMMISSIONER OF SOCIAL SECURITY
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
Lugo asserts he is entitled to benefits under Title II of the
Social Security Act. Plaintiff argues the administrative law
judge erred in her evaluation of the vocational evidence in
the action. Because the ALJ failed to apply the proper legal
standards and ignored significant, probative evidence in the
record, the matter is REMANDED for further
proceedings pursuant to sentence four of 42 U.S.C. §
19, 2014, Plaintiff filed an application a period of
disability and disability insurance benefits. (Doc. 11-7 at
2) The Social Security Administration denied his applications
at the initial level and upon reconsideration. (See
generally Doc. 11-4; Doc. 11-3 at 24) Plaintiff
requested a hearing and testified before an ALJ on February
2, 2017. (See Doc. 11-3 at 24, 41) At that time, the
ALJ also obtained testimony from a vocational expert.
(See Id. at 52) The ALJ determined Plaintiff was not
disabled and issued an order denying benefits on February 24,
2017. (Id. at 24-32)
requested review by the Appeals Council, asserting that
“ALJ failed to acknowledge or consider [the] vocational
analysis by Ms. Judith Najarian.” (Doc. 11-8 at 69) In
addition, Plaintiff argued the ALJ erred in her
classification of the past relevant work. (Id.) On
April 11, 2018, the Appeals Council denied Plaintiff's
request for review, finding “no reason under [the]
rules to review the Administrative Law Judge's
decision.” (Doc. 11-3 at 2-4) Therefore, the ALJ's
determination became the final decision of the Commissioner
of Social Security.
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. Maounis
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.
Work History Report
10, 2014, Plaintiff completed a work history report regarding
the jobs he held in the past fifteen years. (Doc. 11-8 at
13-22) He indicated he worked as a “letter
sorter” for the census, a stocker for a grocery store
and as a warehouse employee. (Id. at 13) Plaintiff
reported that in the letter sorter position, he stood for
eight hours a day and handled boxes with letters.
(Id. at 15) He indicated the heaviest boxes he
lifted weighed fifty pounds and he was required to
“move the boxes to the machine.” (Id.)
He lifted these boxes “2/3 of the workday.”
Vocational Expert's Report
request of counsel, vocational expert Judith Najarian,
provided a report to clarify Plaintiff's past work. (Doc.
11-8 at 63-65) Ms. Najarian noted that Plaintiff reported:
At his work station, he would go to a mail cart, already
filled with mail, and push it about 10 feet to the mail
The wheeled mail cart that he pushed is described as 6 feet
tall, 4 feet wide, with four shelves on it. On the shelves
are plastic mail bins, similar to those used by the Post
Office. There are 16 bins to a cart and each bin is filled by
another worker with mail/correspondence. Depending on how
full each bin is, Mr. Lugo estimated the bins weigh 30-50
The mail sorting machine is programmed by a supervisor to
sort by desired location. If a jam occurs, he is to call a
supervisor and not clear the jam himself.
His job was to individually take each bin off the cart in
turn, place the bin on a 3-foot tall table by the sorting
machine, and hand remove mail from the bin to feed into the
machine. He would then return the empty bins to the cart,
return the empty cart, and acquire another full cart to
repeat this process throughout his shift.
(Id. at 63-64) According to Ms. Najarian,
“There was no [Dictionary of Occupational
Titles] code that accurately reflects this job as
performed.” (Id. at 64) She observed the
Dictionary of ...