Harding v. Commissioner of Social Security

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA CHRISTOPHER H., CASE NO. 3:19-CV-6125-DWC 11 Plaintiff, ORDER REVERSING AND 12 v. REMANDING DEFENDANT’S DECISION TO DENY BENEFITS COMMISSIONER OF SOCIAL SECURITY, Defendant.

Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant’s denial of Plaintiff’s application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 2.

After considering the record, the Court concludes that that the Administrative Law Judge (“ALJ”) erred in relying upon the vocational expert (“VE”) to find that there were a significant number of jobs Plaintiff could perform at step five of the sequential evaluation. Had the ALJ properly considered this evidence, Plaintiff may have been found disabled at step five.

3 Accordingly, this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Social Security Commissioner (“Commissioner”) for further proceedings consistent with this Order.

6 FACTUAL AND PROCEDURAL HISTORY 7 On September 14, 2016 and December 1, 2016, Plaintiff filed applications for DIB and SSI respectively, alleging in both applications a disability onset date of October 31, 2014. AR Administrative Record (“AR”) 20, 177-78, 181-90, 191-96. Plaintiff subsequently amended his disability onset date to August 3, 2015. AR 20, 61. His applications were denied upon initial administrative review and on reconsideration. AR 20, 124-26, 128-30, 131-33. Two hearings were held before ALJ Kimberly Boyce on March 26, 2018 and July 23, 2018. AR 52-57, 58-90.

13 In a decision dated October 22, 2018, the ALJ issued a written decision finding Plaintiff was not disabled. AR 17-32. On September 26, 2019, the Social Security Appeals Council denied Plaintiff’s request for review, making the ALJ’s written decision the final agency decision subject to judicial review. AR 1-6; see 20 C.F.R. §§ 404.981, 416.1481.

17 In Plaintiff’s Opening Brief, Plaintiff maintains the ALJ erred by: (1) finding that there were a significant number of jobs Plaintiff could perform at step five of the sequential evaluation; (2) not providing germane reasons for discounting opinions from non-acceptable medical sources; and (3) not providing clear and convincing reasons for discounting Plaintiff’s testimony. Dkt. 10, pp. 2-16.

1 STANDARD OF REVIEW 2 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social security benefits if the ALJ’s findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

6 DISCUSSION 7 I. Whether the ALJ erred at step five.

8 Plaintiff contends that the ALJ erroneously found that there were a significant number of jobs Plaintiff could perform at step five of the sequential evaluation. Dkt. 10, pp. 2-5.

10 At step five of the sequential evaluation, the burden shifts to the Commissioner to prove that the claimant can perform other work in the national economy, given his or her age, education, residual functional capacity (“RFC”) and past work experience. See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (quoting Embrey v. Bowen, 849 14 F.2d 418, 422 (9th Cir. 1988)); Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (“the burden shifts to the Commissioner in step five to show that the claimant can perform other substantial gainful work.”). Other work “which exists in the national economy” means work which exists in significant numbers either in the region where the individual lives or in several regions of the country. 42 U.S.C. § 423(d)(2)(A).

19 Here, the ALJ, relying upon VE testimony, found that there were a significant number of jobs Plaintiff could perform at step five. AR 30-32, 86-87. The jobs cited by the ALJ at step five included small products assembler (776 jobs available in the national economy), production assembler (789 jobs available in the national economy), and sub assembler (13,000 jobs available in the national economy). Id. 1 As such, there would be a total of 14,565 jobs available in the national economy that Plaintiff could perform given his age, education, work experience, and RFC. While it is the ALJ’s burden at step five to establish the existence of significant number of jobs a claimant could perform, the Ninth Circuit has “never set out a bright line rule” as to what constitutes a “significant number.” Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). The Ninth Circuit has held that 25,000 jobs available in the national economy presented a “close call”, but found that this did constitute a significant number of jobs. Gutierrez v. Comm. of Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014).

9 Defendant, citing a decision by this Court from 2010, argues that as few as 9,000 jobs can constitute a “significant number” of jobs for purposes of Social Security regulations. Dkt. 11, p. 10, Hoffman v. Astrue, No. 09-CV-5252-RJB, available at 2010 WL 1138341, at *7 (W.D.

12 Wash. March 19, 2010).

13 The decision in Hoffman pre-dates the Ninth Circuit’s ruling in Gutierrez by four years, and in the years since, this Court has routinely found that fewer than 25,000 jobs available in the national economy does not constitute a “significant number” of jobs. See e.g. Richard S. v. Comm’r of Soc. Sec., 3:19-CV-6037-DWC (W.D. Wash. May 1, 2020) (finding that 8,000 available jobs did not constitute a significant number); James P. v. Saul, 2:19-cv-1427-MAT (W.D. Wash. April 7, 2020) (noting that the Ninth Circuit has not found fewer than 20,000 jobs available in the national economy to be “significant” without inclusion of an “appreciable number of available regional jobs”); Ashley T. v. Comm’r of Soc. Sec., 3:19-CV-05207-JRC (W.D. Wash. Sept. 12, 2019) (finding that 23,186 jobs available in the national economy did not constitute a “significant number”).

1 Given that the Ninth Circuit felt that 25,000 available jobs represented a “close call”, the Court cannot say that the number of available jobs in this case, 14,565, represented a “significant” number. Accordingly, the ALJ erred in finding that there were a significant number of jobs that Plaintiff could perform at step five of the sequential evaluation.

5 II. Other Issues.

6 Plaintiff maintains that the ALJ erred by not providing valid reasons for discounting his testimony, statements from his friends and family members, and an opinion from a treating nurse practitioner. Dkt. 10, pp. 5-16. Because Plaintiff will be able to present new evidence and testimony on remand, and because the ALJ’s reconsideration of the record may impact her assessment of this evidence, the ALJ shall instead reconsider this evidence as necessary on remand.

12 III. Remedy.

13 The Court may remand a case “either for additional evidence and findings or to award benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1992). Generally, when the Court reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit created a “test for determining when evidence should be credited and an immediate award of benefits directed[.]” Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Specifically, benefits should be awarded where: 20 (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] evidence, (2) there are no outstanding issues that must be resolved 21 before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such 22 evidence credited.

1 Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). The Court is mindful that simply providing another opportunity to assess improperly evaluated evidence, allowing the ALJ to have a “mulligan”, does not qualify as a remand for a “useful purpose” under the first part of the credit as true analysis. Garrison, 759 F.3d at 1021-22, citing Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“Allowing the Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let’s play again’ system of disability benefits adjudication.”).

8 Here, the ALJ erred in finding that there were a significant number of jobs that Plaintiff could perform at step five. However, the Court may remand on an open record for further proceedings “when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (quoting Garrison, 759 F.3d at 1021). The record here does not contain any opinions from acceptable medical sources consistent with a finding of disability, and the record creates significant doubt concerning whether Plaintiff is disabled. Accordingly, remand for further administrative proceedings is the appropriate remedy.

16 CONCLUSION 17 Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and this matter is remanded for further administrative proceedings in accordance with the findings contained herein. The Clerk is directed to enter judgment for Plaintiff and close the case.

21 Dated this 15th day of July, 2020.

A David W. Christel United States Magistrate Judge