1 - OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHAUNA MICHELE JACKSON,

Plaintiff, Civ. No. 1:16-cv-00216-MC

v. OPINION AND ORDER

CAROLYN W. COLVIN, 

Acting Commissioner of the Social Security

Administration,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff Shauna Jackson brings this action for judicial review of a final decision of the 

Commissioner of Social Security denying her application for disability insurance benefits (DIB) 

under Title II of the Social Security Act and Supplemental Security Income (SSI). The Court has 

jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, the 

Commissioner’s decision is reversed and remanded for further proceedings to (1) resolve the 

conflict between Ms. Jackson’s limitations and the occupational demands; and (2) assess the 

severity of Ms. Jackson’s bunion and incorporate findings into her RFC
2 - OPINION AND ORDER

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff filed an application for disability insurance benefits on March 2, 2004, alleging 

disability beginning January 12, 2004. Tr. 199. Plaintiff’s application was denied, and she 

requested a hearing before an Administrative Law Judge (ALJ). Tr. 217-232. A hearing was held 

on November 9, 2006 (Tr. 189), and on April 23, 2007, the ALJ issued a decision finding 

plaintiff was not disabled. Tr. 186. On June 18, 2009, the Appeals Council denied Ms. Jackson’s 

request for review. Tr. 16. Ms. Jackson appealed the final decision of the Commissioner to the 

United States District Court and the ALJ’s decision was remanded. Tr. 1108, 1465. On 

December 14, 2011, Ms. Jackson appeared before ALJ Lazuran for a second hearing. Tr. 1449. 

On March 30, 2012, ALJ Lazuran issued a Partially Favorable Decision, finding Plaintiff 

disabled on November 5, 2009. Tr. 1450. Ms. Jackson appealed the Partially Favorable Decision,

and on September 18, 2013, the Appeals Council remanded the ALJ’s decision. Tr. 1465. On 

August 12, 2014, Ms. Jackson appeared before ALJ Michaelsen. Tr. 1101. On November 7, 

2014, ALJ Michaelsen issued an Unfavorable Decision, upholding Plaintiff’s onset date. Tr. 

1098. On January 7, 2015, Ms. Jackson appealed this decision to the Appeals Council. Tr. 1095. 

The Appeals Council denied Ms. Jackson’s request for review. Tr. 1089. This appeal followed.

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 on the record. 

42 U.S.C. § 405(g); Batson v. Comm’r for 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. Chater, 108 F.3d 978, 
3 - OPINION AND ORDER

980 (9th Cir. 1997)). To determine whether substantial evidence exists, this Court reviews the 

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

detracts from the ALJ’s conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

The Commissioner's findings are upheld if supported by inferences reasonably drawn 

from the record; if evidence exists to support more than one rational interpretation, the court 

must defer to the Commissioner's decision. Batson, 359 F.3d at 1193; Aukland v. Massanari, 257 

F.3d 1033, 1034-35 (9th Cir. 2000) (when evidence can rationally be interpreted in more than 

one way, the court must uphold the Commissioner's decision). A reviewing court, however, 

“cannot affirm the Commissioner's decision on a ground that the Administration did not invoke 

in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)

(citation omitted). A court may not reverse an ALJ's decision on account of an error that is 

harmless. Id. at 1055–56. “[T]he burden of showing that an error is harmful normally falls upon 

the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 

DISCUSSION

The Social Security Administration uses 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 at step five. 20 C.F.R. § 404.1520. 

At step five, the Commissioner’s burden is to demonstrate the claimant is capable of making an 

adjustment to other work after considering the claimant’s residual functional capacity, age, 

education, and work experience. Id.

Here we address step five of the most recent Unfavorable Decision that maintained the 

disability onset date of November 5, 2009, but not before. The ALJ determined that Ms. Jackson 
4 - OPINION AND ORDER

was not disabled before that date because she was able to perform the representative occupation 

of surveillance system monitor. (DOT# 379.367-010). Tr. 1106.

Plaintiff argues this job is incompatible with Ms. Jackson’s RFC because her RFC does 

not include Level 3 Reasoning. Pl.’s Br. 4, ECF No. 11. Plaintiff points to the Ninth Circuit 

holding that “there is an apparent conflict between the residual functional capacity to perform 

simple, repetitive tasks, and the demands of Level 3 Reasoning.” Zavalin v. Colvin, 778 F.3d 842 

(9th Cir. 2015). Here, while the ALJ limited Ms. Jackson to simple, routine tasks (Tr. 1105) the 

representative occupation of surveillance system monitor requires level 3 reasoning. Dictionary 

of Occupational Titles. Plaintiff is requesting relief in the form of either a remand to resolve this

apparent conflict or a remand for immediate payment of benefits.

The Commissioner concedes that there is a conflict between the RFC and the ability to 

perform the surveillance system monitor job as well as other jobs at step five, and requests 

remand so that further vocational testimony may be taken to resolve the conflict. Def.’s Br. 4-5, 

ECF No. 16. 

In Zavalin v. Colvin, the Court wrote that “when there is an apparent conflict between the 

vocational expert’s testimony and the DOT—for example, expert testimony that a claimant can 

perform an occupation involving DOT requirements that appear more than the claimant can 

handle—the ALJ is required to reconcile the inconsistency.” Zavalin, 778 F.3d. 842, 846 (9th 

Cir. 2015) citing Massachi v. Astrue, 486 F.3d 1149, 1153-54 (9th Cir. 2007). The ALJ must ask 

the expert to explain the conflict and then determine whether the vocational expert’s explanation 

for the conflict is reasonable. Id. Failure to do so may result in a gap in the record that precludes 

a court from determining whether the ALJ’s decision is supported by substantial evidence. Id. 
5 - OPINION AND ORDER

I find that the ALJ failed to resolve the conflict and did not ask the vocational expert to 

explain why a person of Ms. Jackson’s limitation could nevertheless meet the demands of the 

occupation of surveillance system monitor. 

The decision whether to remand for further proceedings or for immediate payment of 

benefits generally turns on the likely utility of further proceedings. Harman v. Apfel, 211 F.3d 

1172, 1179 (9th Cir. 2000). When “the record has been fully developed and further 

administrative proceedings would serve no useful purpose, the district court should remand for 

an immediate award of benefits.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). I find 

that the record has not been fully developed considering the absence of the necessary expert 

testimony. 

Plaintiff also argues that only the representative occupation of surveillance monitor 

should be considered on remand. Pl.’s Reply Br. 2, ECF No. 17. Upon close review of the 

record, I find that it cannot be established that surveillance monitor was identified as the only job 

plaintiff could do. Tr. 1976-1988. The case is remanded for further proceedings to allow the ALJ 

to resolve the conflict between occupational demands and plaintiff’s established RFC for that 

time period. 

Plaintiff has raised two other issues. As to the first, I find that the district court reached a 

prior decision and found that the ALJ properly discounted Tatturo Ogisu’s assessment which 

precludes this court, under the “law of the case” doctrine, from reconsidering the issue. Thomas 

v. bible, 983 F.2d 152, 154 (9th Cir. 1993). The district court’s prior decision discussed and ruled 

on Dr. Ogisu’s assessment of plaintiff’s reaching limitation as well as her exertional limitations. 

Tr. 1114-1115. 
6 - OPINION AND ORDER

Second, because substantial evidence in the record shows that Ms. Jackson’s bunions 

caused more than minimal effect on her ability to work for more than 12 months, I find the ALJ 

erred by failing to properly assess the severity of Ms. Jackson’s bunions. The ALJ’s decision is 

remanded to allow the ALJ to assess the severity of Ms. Jackson’s bunion and incorporate the 

ALJ’s findings into Ms. Jackson’s RFC. 

CONCLUSION

We reverse and remand for further proceedings consistent with this opinion.

IT IS SO ORDERED.

DATED this 31st day of May, 2017.

______/s/Michael J. McShane_______

Michael J. McShane

United States District Judge