ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS (ECF No. 13)

JAMES HUTTON, Magistrate Judge

BEFORE THE COURT are cross-motions for Summary Judgment noted for hearing without oral argument on July 22, 2011 (ECF No. 13, 16). Attorney Maureen J. Rosette represents plaintiff; Special Assistant United States Attorney Jordan D. Goddard represents the Commissioner of Social Security. The parties consented to proceed before a magistrate judge (ECF No. 7). On June 27, plaintiff filed a reply (ECF No. 18). After reviewing the administrative record and the briefs filed by the parties, the court GRANTS Plaintiff's Motion for Summary Judgment (ECF No. 13), REVERSES AND REMANDS for further administrative proceedings, and DENIES Defendant's Motion for Summary Judgment (ECF No. 16).

JURISDICTION

Plaintiff protectively applied for supplemental security income (SSI) benefits on February 24, 2006, due to a back injury and liver disease (Tr. 74-77, 119). The application was denied initially and on reconsideration (Tr. 40-41, 43-46).

A hearing was held on February 1, 2008, before Administrative Law Judge (ALJ) R.J. Payne (Tr. 586-621). Mr. Hansen, represented by counsel, and two medical experts testified. On February 25, 2008, the ALJ issued an unfavorable decision (Tr. 15-24). The Appeals Council denied Plaintiff's request for review on June, 30, 2010 (Tr. 3-6). The ALJ's decision became the final decision of the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review pursuant to 42 U.S.C. § 405(g) on July 30, 2010 (ECF No. 2, 4).

STATEMENT OF FACTS

The facts have been presented in the administrative hearing transcript, the ALJ's decision, the briefs of both parties. They are only briefly summarized here.

Plaintiff was forty-three years old when he applied for benefits and 45 at the hearing (Tr. 604). He earned a GED and was previously self-employed as a dairy farmer until around 2000 (Tr. 605-606). In February 2004 he was hospitalized with a gastrointestinal bleed. Plaintiff was diagnosed with acute alcoholic hepatitis, cirrhosis, and advised he needed to stop drinking. By April 2004, Mr. Hansen's liver had significantly improved with abstinence from alcohol. In 2005 he was diagnosed with diabetes. He has suffered from back pain for the last several years because he broke three vertebrae when he was young.

At the time of the gastrointestinal bleed, Mr. Hansen was diagnosed with depression and prescribed antidepressant medication.

SEQUENTIAL EVALUATION PROCESS

The Social Security Act (SSA) defines disability as the "inability to engage in 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 twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a Plaintiff shall be determined to be under a disability only if any impairments are of such severity that a plaintiff is not only unable to do previous work, but cannot, considering plaintiff's age, education and work experiences, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9^th Cir. 2001).

To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520 and 416.920. The ALJ first considers whether the claimant is engaged in substantial gainful activity; if not, the ALJ asks in the second step whether the claimant has a severe impairment (i.e., one that significantly affects his or her ability to function); if so, the ALJ asks in the third step whether the claimant's condition meets or equals one of those outlined in the Listing of Impairments in Appendix 1 of the regulations; if not, then in the fourth step the ALJ asks whether the claimant can perform his or her relevant work; if not, finally, the ALJ in the fifth step asks whether the claimant can perform other jobs that exist in substantial numbers in the national economy. 20 C.F.R. §§ 404.1520 and 416.920.

The burden of proof is on the plaintiff to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9^th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9^th Cir. 1999). The initial burden is met once plaintiff establishes that a physical or mental impairment prevents the performance of previous work. At step five, the burden shifts to the Commissioner to show (1) plaintiff can perform other substantial gainful activity, and (2) a "significant number of jobs exist in the national economy" which plaintiff can perform. Tackett v. Apfel, 180 F.3d 1094, 1099 (1999); Kail v. Heckler, 722 F.2d 1496, 1498 (9^th Cir. 1984).

STANDARD OF REVIEW

Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A Court must uphold the Commissioner's decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Tackett, 180 F.3d at 1097. "The [Commissioner's] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence." Delgado v. Heckler, 722 F.2d 570, 572 99^th Cir. 1983). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9^th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9^th Cir. 1989); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9^th Cir. 1988). Substantial evidence "means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). "[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9^th Cir. 1965). On review, the Court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9^th Cir. 1989), quoting Kornock v. Harris, 648 F.2d 525, 526 (9^th Cir. 1980).

It is the role of the trier of fact, not this Court, to resolve conflicts in the evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9^th Cir. 1987). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9^th Cir. 1987).

ALJ'S FINDINGS

DISCUSSION

Plaintiff contends substantial evidence did not support the ALJ's decision and he made several legal errors. The error at step five is dispositive.

A. Step five

Once the sequential analysis has reached step five, in order to support a conclusion that an individual is not disabled, the Social Security Administration must provide evidence that demonstrates other work exists in significant numbers in the national economy that the claimant can do, given the claimant's residual functional capacity. There are two ways the ALJ can meet this burden: (1) by the testimony of a vocational expert or (2) by reference to the Medical-Vocational Guidelines (the Grids), at 20 C.F.R. Pt. 404, subpt. P, App. 2. See Tackett v. Apfel, 180 F.3d 1094, 1101 9^th Cir. 1999).

However, these Guidelines only apply when "a claimant's functional limitations fall into a standardized pattern accurately and completely described by the grids." Tackett, 180 F.3d at 1103 (9^th Cir. 1999), citing Jones v. Heckler, 760 F.2d 993, 998 (9^th Cir. 1985).

Here, ALJ Payne noted vocational experts have historically and routinely testified in prior hearings that an individual with the same age, education, and work experience as the claimant, who also has the same "types" of exertional and non-exertional limitations, would not have a significant erosion of the job base at the sedentary and light job levels due to the additional non-exertional limitations (See Tr. 24). The ALJ erred.

The testimony of a vocational expert is required if, as in this case, non-exertional impairments restrict work capacities. Polny v. Bowen, 864 F.2f 661 (9^th Cir. 1988). Here, the ALJ relied on a combination of the grids and vocational expert testimony in other cases. It is improper to rely on information outside the record, as the Commissioner concedes (ECF No. 17 at 15). See Burkhart v. Bowen, 856 F.2d 1335 (9^th Cir. 1988) (vocational conclusions reached by an ALJ, without input from vocational expert, represents an improper reliance upon information outside the record, deprives the claimant of an opportunity to cross-examine or rebut, and lacks sufficient evidentiary support to constitute substantial evidence). The Commissioner argues because the ALJ properly relied on the Grids as a framework, and plaintiff's mental limitations did not significantly erode the occupational base, the ALJ's error in relying on evidence outside the record is harmless (ECF. No. 17 at 15-16). The Court disagrees.

Previous vocational expert testimony is not evidence in this case. The Commissioner bears the burden of proof at step five. And, for the reasons articulated in Burkhart, supra, this court finds the error is harmful.

The degree to which the job base is eroded by Plaintiff's specific mental and non-exertional limitations requires a vocational expert's testimony. See Tackett, 180 F.3d at 1102: use of the grids is justified only when they completely and accurately represent a claimants's limitations. In other words, a claimant must be able to perform the full range of jobs in a given category, i.e., sedentary, light, or medium work. Tackett, 180 F.3d at 1101-1102 (emphasis in the original) (citations omitted); see also Lounsburry v. Barnhart, 468 F.3d 1111, 1115-1116 (9^th Cir. 2006) (Because the grids are not designed to establish automatically the existence of jobs for persons with both severe exertional and non-exertional impairments, they may not be used to direct a conclusion of nondisability) (emphasis in the original).

By concluding that Plaintiff was not disabled without the aid of the testimony of a vocational expert, after finding plaintiff suffers mental and non-exertional limitations, the ALJ committed reversible error.

B. Remedy

To establish at step five whether Plaintiff was disabled under the Social Security Act, the ALJ must hear testimony from a vocational expert. Accordingly, the Court remands to the Commissioner for further administrative proceedings.

CONCLUSION

The ALJ's ultimate findings must be supported by substantial evidence and be free from legal error; if they are not the decision must be reversed. 42 U.S.C. § 405(g); See Meanel v. Apfel, 172 F.3d 1111, 1113 (9^th Cir. 1999). Having reviewed the record and the ALJ's conclusions, this Court finds that the ALJ's step five determination is unsupported by substantial evidence and contains harmful legal error.

IT IS ORDERED:

1. Plaintiff's Motion for Summary Judgment (ECF No. 13) is GRANTED. The Commissioner's decision is REVERSED and the case is REMANDED pursuant to sentence four for further administrative proceedings.

2. Defendant's Motion for Summary Judgment (ECF No. 16) is DENIED.

The District Court Executive is directed to file this Order, provide copies to counsel for Plaintiff and Defendant, enter judgment in favor of Plaintiff, and CLOSE this file.