Recent Social Security Case Updates

Alyson Young, of NW Disability Benefits, shared the below case updates. Alyson received a Bachelor of Arts in English from the University of California, Berkeley, and graduated cum laude from Lewis & Clark Law School in 2012.  She was a member of the Lewis & Clark Law review and Managing Editor of the Student Bar Association newsletter, and also worked at the Lewis & Clark Legal Clinic.  Alyson joined  NW Disability Benefits after clerking in the Clackamas County Circuit Court and briefly working for the Oregon Department of Justice.

Alyson provided the following summaries of the below cases:

Kerry Johnson: CE and DDS put CL at light; literally no opinion put CL at more than light; ALJ Michaelsen put CL at medium, asserting that CE relied on CL’s shoulder problem which was not MDI, and that DDS based their opinion on CE. We successfully argued that CE’s diagnosis, despite containing the word “likely,” was sufficient to establish the shoulder problem as MDI and that therefore the ALJ erred in rejecting the light RFC.  Johnson Decision

Julie Grigsby: DDS put CL at light. ALJ rejected this based on “evidence received at the hearing level” which included no opinions, just more treatment records – some of which was demonstrably worse than what DDS saw. We successfully argued that the ALJ’s reasoning was not based on substantial evidence in the record.  Grigsby Decision

Forrest Erickson: VE testified that his job number estimates were based on various sources including BOLS. We submitted rebuttal evidence to the ALJ, including citation to specific evidence in the BOLS showing that the VE’s estimates were implausible, impossible (i.e. saying there are 25k lens inserters, when this number is greater than the total employment figure for the ophthalmic goods industry). ALJ did his own independent research and, without proffering his results, included a link to the BOLS website as a whole in his explanation rejecting our rebuttal (which stated there were actually 25k jobs per BOLS). Remanded, because even taking what ALJ said at face value, it showed (as we said) 25k jobs in the whole industry, not just for lens inserter.    Erickson Decision

Two others worthy of note:

Ficken v. Saul: We argued that the “range of work” requirement (Lounsburry, Maxwell) applies to sedentary as well, and that the plain language of the rules requires that the “work” for sedentary grid must be skilled, not skilled and semi-skilled as in the light grids. Although Tommasetti v. Astrue stands to the contrary, we essentially patched the holes in that argument, and argued that it should not be followed. OGC stipulated to immediate payment rather than defend Tommasetti.

Duong v. Saul: Straight numbers argument. VE gave occupations at step five totaling 11,829 jobs in the national economy. We argued that that’s not significant numbers – noting Gutierrez (25k is a “close call”) and Lemauga (unpublished, noting that the Commissioner declined to argue that 12,600 was “significant”). OGC stipulated to remand for further proceedings rather than argue it.