United States District Court, D. Arizona
Mark H. White, Plaintiff,
Nancy Berryhill, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
Mark H. White brought this action pursuant to 42 U.S.C.
§ 405(g) seeking judicial review of a final decision by
the Commissioner of Social Security denying his claim for
disability insurance benefits (DIB) under Title II of the
Social Security Act, 42 U.S.C. §§ 401-433,
1381-1383f. Plaintiff presents three issues on
appeal: (1) whether the Administrative Law Judge
(ALJ) failed to obtain a âreasonable explanationâ for a
conflict in the vocational expert's testimony underlying
the ALJ's step-five decision; (2) whether substantial
evidence supports the ALJ's finding that Plaintiff could
work as a conveyor tender; and (3) whether the Court can
affirm the ALJ's step-five decision based on the
occupation of laundry worker. Pending before the Court is an
Opening Brief filed by Plaintiff (Doc. 17), the
Commissioner's Brief (Doc. 18), and Plaintiff's Reply
Brief (Doc. 19). Based on the pleadings and the
administrative record submitted to the Court, the Magistrate
Judge recommends that the District Court, after its
independent review, remand this case for further proceedings.
filed an application for DIB in June 2014, alleging
disability since March 7, 2014. R. at 23, 194. The Social
Security Administration denied Plaintiff's application
for DIB initially and upon reconsideration. R. at 131, 137.
Plaintiff requested a hearing before an ALJ and, in the
Decision issued on August 15, 2017, the ALJ concluded that
Plaintiff was not disabled within the meaning of the SSA. R.
at 140, 10-23 (Decision). On May 1, 2018, the ALJ's
Decision became the Commissioner's final decision when
the Appeals Council denied Plaintiff's request for
review. R. at 1-3. This appeal followed.
purposes of Social Security benefits determinations, a
disability is defined as:
The inability to do 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.
20 C.F.R. § 404.1505.
a claimant is disabled is determined using a five-step
evaluation process. It is claimant's burden to show (1)
he has not worked since the alleged disability onset date,
(2) he has a severe physical or mental impairment, and (3)
the impairment meets or equals a listed impairment or (4) his
residual functional capacity (“RFC”) precludes
him from doing his past work. If at any step the Commissioner
determines that a claimant is or is not disabled, the inquiry
ends. If the claimant satisfies his burden though step four,
the burden shifts to the Commissioner to show at step five
that the claimant has the RFC to perform other work that
exists in substantial numbers in the national economy.
See 20 C.F.R. § 404.1520(a)(4)(i)-(v).
case, Plaintiff's claim was denied at step five of the
According the ALJ, Plaintiff retained the RFC to perform
medium level work as defined in 20 CFR 404.1567(c)[.] he
cannot use ladders, ropes or scaffolds, however; must avoid
concentrated exposure to fumes, odors, dust, gases, poor
ventilation or the like; is to avoid concentrated exposure to
hazards, that is commonly defined as unprotected heights or
dangerous machinery; cannot work in a fast-paced production
environment, such that he cannot consistently work at the
pace of work required in a fast-food restaurant such as
McDonalds restaurant or an In-N-Out hamburger restaurant; can
attend and concentrate in 2-hour blocks of time throughout an
9-hour workday with the 2 customary 10-15 minute breaks and
the customary 30-60 minute lunch period.
R. at 15. Based on Plaintiff's RFC and testimony from a
vocational expert, the ALJ concluded that Plaintiff could
work as an automatic machine attendant, a hand packager, or a
conveyor tender. R. at 22.
Standard of Review
ALJ's decision to deny disability benefits will be
vacated “only if it is not supported by substantial
evidence or is based on legal error.” Robbins v.
Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
Substantial evidence is “more than a mere scintilla but
less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Sandgathe v. Chater, 108 F.3d
978, 980 (9th Cir. 1997). In evaluating whether the decision
is supported by substantial evidence, the Court must consider
the record as a whole, weighing both the evidence that
supports the decision and the evidence that detracts from it.
Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
1998); see 42 U.S.C. § 405(g) (“findings
of the Commissioner of Social Security as to any fact, if
supported by ...