{ 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

WENDY G. LOGSTON, 

Plaintiff, 

V. 

CAROLYN W. COL VIN, 

Commissioner of the Social Security 

Administration, 

Defendant. 

MCSHANE, Judge: 

Civ. No. 1 :14-cv-01905-MC 

OPINION AND ORDER 

Plaintiff Wendy Logston seeks judicial review of the Commissioner's decision denying 

her application for Disability Insurance Benefits and Supplemental Security Income under Titles 

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

1383(c)(3). 

Logston applied for Supplemental Security Income on December 17, 2009 and for 

Disability Insurance Benefits on February 11, 2010, alleging disability due to an injury of her 

lower back beginning October 1, 2008. Tr. 19, 21. Her applications were denied initially and on 

reconsideration, and she then requested a hearing. Tr. 19. After the hearing, the administrative 

law judge (ALJ) issued a written decision finding that Logston is not disabled. Tr. 19-20. 

Logston argues that the ALJ erred by not taking the testimony of a vocational expert to 

determine that Logston was not disabled. Because the Commissioner's decision was based on 

proper legal standards and was supported by substantial evidence, the Commissioner's decision 

is AFFIRMED. 

1 - OPINION AND ORDER 

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STANDARD OF REVIEW 

The reviewing court shall affirm the Commissioner's decision if the decision is based on 

proper legal standards and the legal findings are supported by substantial evidence in the record. 

42 U.S.C. § 405(g); Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 

"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."' Hill 

v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chafer, 108 F.3d 978, 980 

(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative 

record as a whole, weighing both the evidence that supports and that which detracts from the 

ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). '"If the evidence can 

reasonably support either affirming or reversing,' the reviewing court 'may not substitute its 

judgment' for that of the Commissioner." Gutierrez v. Comm 'r of Soc. Sec. Admin., 740 F.3d 

519, 523 (9th Cir. 2014) (quoting Reddickv. Chafer, 157 F.3d 715, 720-21 (9th Cir. 1996)). 

DISCUSSION 

A claimant is disabled if she is unable to "engage in any substantial gainful activity by 

reason of any medically determinable physical or mental impairment 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)(l )(A). The Social Security Administration (SSA) utilizes a five step sequential evaluation 

to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520; 416.920. The initial burden 

of proof rests upon the claimant to meet the first four steps. If claimant satisfies his or her burden 

with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. 

§ 404.1520. 

2 - OPINION AND ORDER 

Case 1:14-cv-01905-MC Document 21 Filed 12/01/15 Page 2 of 9
1 

At step one, the SSA considers whether the claimant is currently engaged in substantial 

gainful activity; if she is, the claimant is not disabled. 20 C.F.R. § 404.l 520(a)( 4). At step two, 

the SSA considers the medical severity of the claimant's impairment. Id. The agency will find 

the claimant not disabled if the impairment is not severe enough. Id. At step three, the claimant 

will be found disabled if the claimant's impairment is of sufficient duration and if it meets or 

equals a list of impairments. Id. If the impairment does not meet these requirements, the 

claimant's residual functional capacity (RFC) is determined. Id. The claimant's RFC is an 

assessment of the greatest level of work that she can do based on an analysis of the effects of all 

limitations evident in her record on the physical, mental, sensory, and other requirements of 

work. 20 C.F.R. § 404.l 545(a)(l ). At step four, the SSA looks at the claimant's past work and 

RFC, and if the claimant is able to do her past work, the claimant is not disabled. 20 C.F.R. § 

404.l 520(a)( 4 ). 

At step five, it is the Commissioner's burden to demonstrate that although the claimant is 

unable to do past relevant work she is capable of making an adjustment to other work. Id. To 

make that determination, the SSA considers the claimant's vocational factors: her RFC, age, 

education, and work experience. Id. If the Commissioner proves that the claimant is able to 

perform other work existing in significant numbers in the national economy, the claimant is not 

disabled. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). To assist the 

uniformity and efficiency of the ALJ's step five decisions, the SSA established the MedicalVocational Guidelines (Guidelines). Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007). The 

Guidelines are a matrix of the four factors and "set forth rules that identify whether jobs 

requiring a specific combination of these factors exist in significant numbers in the national 

economy." Id. (quoting Heckler v. Campbell, 461U.S.458, 461-62 (1983)). 

3 OPINION AND ORDER 

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The ALJ found at step one that Logston had not engaged in substantial gainful activity 

since the claimed disability onset date. Tr. 21. At step two, the ALJ found that Logston's 

"vertobrogenic disorder in the lumbar spine; cervicalgia; obesity; depressive disorder, not 

otherwise specified; generalized anxiety disorder; pain disorder; and personality disorder, not 

otherwise specified" qualified as severe impairments under the regulations. Tr. 21. At step three, 

the ALJ found that Logston's impairments did not meet or equal any listed impairment. Tr. 22. 

Between steps three and four, the ALJ found Logston had the RFC to perform sedentary work as 

defined by 20 CFR 404.1567(a) and 416.967(a). Tr. 23. At step four, the ALJ found that Logston 

could not perform her past relevant work because it required greater than a sedentary exertion 

level. Tr. 31. At step five, the ALJ found that Logston was not disabled because there were 

significant numbers of jobs in the national economy that she could perform. Tr. 31. To reach this 

conclusion, the ALJ considered the claimant's RFC, age, education, and work experience in 

conjunction with the Guidelines. Tr. 31. In addition, the ALJ looked at Logston's nonexertional 

limitations and determined that they would not significantly erode her sedentary job base. Tr. 32. 

Logston asserts that the ALJ erred at the fifth step of the disability analysis by failing to 

consult a vocational expert (VE). PL Br. 2. Logston first argues that the ALJ erred by relying 

exclusively on the Guidelines, none of which exactly matched her combination of factors, to find 

that Logston was not disabled. Second, Logston argues that the ALJ erred in not properly 

considering her nonexertional limitations, which she contends severely limit the range of 

sedentary work she can perform. According to Logston, the testimony of a vocational expert is 

therefore required to determine whether a significant number of jobs exist. 

4 - OPINION AND ORDER 

Case 1:14-cv-01905-MC Document 21 Filed 12/01/15 Page 4 of 9
I. Step Five Disability Analysis 

At step five, the Guidelines alone direct a conclusion of disabled or not disabled when the 

claimant has only exertional limitations and the rule's vocational factors exactly match those of 

the claimant. Hoopai, 499 F.3d at 1075. The ALJ may not rely exclusively on the Guidelines and 

must take the testimony of a VE "[ w ]hen the grids do not completely describe the claimant's 

abilities and limitations, such as when the claimant has both exertional and nonexertional 

limitations." Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 

F.2d 1335, 1340 (9th Cir. 1988)). But, the fact that a claimant has a nonexertional limitation does 

not automatically preclude application of the grids. Tackett v. Apfel, 180 F.3d 1094, 1102 (9th 

Cir. 1999). The ALJ must first determine if a claimant's nonexertional limitations significantly 

limit the range of work permitted by his exertional limitations. Id 

The testimony of a vocational expert is required when a claimant's nonexertional 

limitation is "'sufficiently severe' so as to significantly limit the range of work permitted by the 

claimant's exertional limitation." Hoopai, 499 F.3d at 1076 (quoting Burkhart, 856 F.2d at 

1340). When the nonexertional limitation is not sufficiently severe, the ALJ must use the 

Guidelines as a framework to determine whether the claimant can perform work that exists in 

significant numbers despite her nonexertional limitations. Id at 1075 (citing Soc. Sec. Ruling 83-

14). 

A step-two finding that a nonexertional limitation is "severe" does not automatically 

require the ALJ to seek the assistance of a vocational expert. Id at 1076. "[B]uilt into the stepfive determination and the [Guidelines] is recognition that the claimant has met the threshold 

requirement for a severe disability at step two." Id. The step-two finding is not dispositive of a 

5 - OPINION AND ORDER 

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"sufficiently severe" nonexertional limitation at step-five. Id. If it were, a VE would be required 

at every claimant's step five evaluation, which was clearly not the intent of the Guidelines. Id. 

This Court does not agree that the ALJ mechanically applied the Guidelines to find that 

Logston was not disabled. The ALJ states that he used Medical-Vocational Rule 201.21 as a 

framework to determine if Logston was disabled. Tr. 32. Medical-Vocational Rule 201.21 

provides a decision of not disabled for claimants with the following characteristics: an individual 

45-49 years of age, with a high school graduate education, and who possesses non-transferable 

skills from a skilled or semi-skilled work background. Although the ALJ found that Logston's 

vocational profile did not exactly match any of the sedentary Medical-Vocational Rules because 

Logston had an unskilled work background, the ALJ chose to use this rule as a framework for his 

determination of Logston's disability status. Tr.32. The Commissioner points out that Rule 

201.18 also provides a decision of not disabled for an individual of the same age, with less 

education than Logston, and the same unskilled work experience. Def. Br. at 6. Therefore, using 

the Guidelines as a framework for analyzing Logston's disability status would properly result in 

a determination of not disabled as long her nonexertional limitations were not severe enough to 

significantly erode her sedentary job base. 

The ALJ's determination that Logston's nonexertional limitations would have little to no 

effect on her unskilled sedentary occupational base was based on proper legal standards and was 

supported by substantial evidence. He found that Logston could occasionally climb stairs and 

ramps, stoop, balance, crouch, crawl and kneel. Tr. 23. The ALJ also found that Logston should 

avoid concentrated exposure to extreme cold and heat; fumes; dust; gases; poor ventilation and 

other pulmonary irritants; hazardous machinery; and unprotected heights. Tr. 23-24. 

Additionally, he found that she had mild to moderate limitations in understanding and 

6 - OPINION AND ORDER 

Case 1:14-cv-01905-MC Document 21 Filed 12/01/15 Page 6 of 9
remembering detailed instructions; maintaining attention and concentration for extended periods; 

and setting realistic goals or making plans independently of others. Tr. 24. Finally, the ALJ 

found that Logston had a moderate limitation in responding appropriately to changes in the work 

setting. Tr. 24. 

The ALJ concluded that "[g]iven an individual with the same age, education, and work 

experience as the claimant in this case, the types of exertional and physical/mental nonexertional limitations present in the case at hand, [sic] would not significantly erode the job base 

at the sedentary level." Tr. 32. Logston's nonexertional limitations can be broken into three 

categories: postural-manipulative impairments, environmental restrictions, and mental 

impairments. First, Logston was found to be able to occasionally climb stairs and ramps, stoop, 

balance, crouch, crawl, and kneel. Tr. 23. The ALJ was correct in determining that none of these 

would erode her occupational base because they are not required more than occasionally in 

sedentary work. See Soc. Sec. Ruling 85-15. Second, Logston's environmental restrictions to 

avoid concentrated exposure of heat, cold, fumes, dust, gases, poor ventilation, machinery, and 

heights were also correctly found to not have a significant effect on her sedentary work base. See 

id. 

Third, the ALJ was correct in finding that Logston's mild to moderate and moderate 

mental nonexertional limitations were not severe enough to significantly erode her job base. 

Consequently, the testimony of a vocational expert was not required. Moderate mental 

nonexertional limitations do not mandate the testimony of a vocational expert because they do 

not per se limit the claimant's ability to do work beyond the exertional limitation. Hoopai, 499 

F.3d at l 077. In Hoopai, a claimant with depression and a back injury limiting him to light work 

was found to have moderate limitations in his ability to maintain attention and concentration, to 

7 OPINION AND ORDER 

Case 1:14-cv-01905-MC Document 21 Filed 12/01/15 Page 7 of 9
maintain a schedule, to maintain regular attendance and punctuality, and to complete normal 

workdays and weeks without interruption from psychologically based symptoms of his 

depression. Id. at 107 4, 1077. Despite these moderate nonexertional limitations, the Ninth Circuit 

affirmed the ALJ's decision finding the claimant was not disabled without the assistance of a 

vocational expert. Id. at 1077. 

The ALJ found that Logston had mild to moderate limitations in understanding and 

remembering detailed instructions, maintaining attention and concentration for extended periods, 

setting realistic goals or making plans independently of others, and moderate limitations in 

responding appropriately to changes in the work setting. Tr. 24. The ALJ was correct in finding 

that these mental limitations are not severe enough to significantly erode Logston's job base. 

This is true not only because the limitations are mild to moderate, but also because two of the 

three impacted abilities are expressly not required to perform unskilled sedentary work. See Soc. 

Sec. Ruling 85-15 (unskilled work requires ability to understand, carry out, and remember simple 

instructions and requires little or no judgment to do simple duties). Applying Hoopai, the ALJ's 

finding that Logston's moderate mental limitation in responding appropriately to changes in the 

work setting would not significantly erode Logston'sjob base was based on proper legal 

standards. 

The ALJ also had substantial evidence to conclude that Logston's nonexertional 

limitations were not severe enough to significantly erode her occupational base, so he did not 

need the testimony of a vocational expert. In Dr. Bagner's report from his complete psychiatric 

evaluation of Logston, he stated that "[s]he would have mild limitations maintaining 

concentration and attention and completing complex tasks," and "[s]he would have mild to 

moderate limitations handling normal stresses at work and completing a normal workweek 

8 - OPINION AND ORDER 

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without interruption." Tr. 508. Additionally, he believed that Logston would improve 

significantly and quickly if she received psychiatric treatment for her depression. Tr. 508. After 

Dr. Edwin's psychological evaluation of Logston, he stated that she would have mild and 

moderate limitations in a workplace. Tr. 669. At the hearing, mental health medical expert Dr. 

Moore testified that after reviewing the evaluations of Logston's mental limitations, she believed 

Logston was capable of full-time work activity on a regular and consistent basis. Tr. 46-48. Also 

after a review of Logston's record, Dr. Amado determined that despite the mild and moderate 

mental nonexertional limitations, Logston was "not precluded from unskilled work activity." Tr. 

522. The ALJ had substantial evidence to determine that Logston's nonexertional limitations 

were not sufficiently severe to significantly limit Logston's sedentary work base. As a result, the 

ALJ was not required to seek the assistance of a vocational expert. The ALJ properly used the 

Guidelines as a framework in determining that there were significant numbers of sedentary jobs 

that Logston could perform. 

CONCLUSION 

The ALJ' s finding that Logston was not disabled was based on proper legal standards and 

was supported by substantial evidence in the record. The Commissioner's final decision is 

therefore AFFIRMED. 

IT IS SO ORDERED. 

DATED this _i _day of December, 2015. 

\..___ 

Michael McShane 

United States District Judge 

9 - OPINION AND ORDER 

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