United States District Court, D. Oregon
LAURIE B. MAPES, Scappoose, OR, Attorney for Plaintiff.
S. AMANDA MARSHALL, United States Attorney, District of Oregon, RONALD K. SILVER, Assistant United States Attorney, Portland, OR.
DIANA ANDSAGER, Social Security Administration, Office of the General Counsel, Seattle, WA, Attorneys for Defendant.
OPINION AND ORDER
MALCOLM F. MARSH, District Judge.
Plaintiff Quinton Reed seeks judicial review of the final decision of the Commissioner of Social Security denying his application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C §§ 401-403. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons that follow, I reverse and remand for an immediate calculation and award of benefits.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff protectively filed an application for DIB on December 17, 2009, alleging disability beginning August 15, 2010, due to chronic obstructive pulmonary disease (COPD), emphysema, and loss of bowl control due to sigmoid anastamosis. Plaintiff meets the insured status requirements for a DIB application through December 31, 2014.
Plaintiff's claims were denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a hearing on March 20, 2012, at which plaintiff appeared with her attorney and testified. A vocational expert, Richard M. Hincks, also appeared at the hearing and testified. On March 29, 2012, the ALJ issued an unfavorable decision. The Appeals Council denied plaintiff's request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review.
Born in 1959, plaintiff was 53 years old on the date of the ALJ's adverse decision. Plaintiff has a ninth grade education level, obtained his General Education Degree (GED), and completed a lineman apprenticeship. Plaintiff's past relevant work includes consistent work as a lineman for the past twenty years.
THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. Valentine v. Commissioner Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since his alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe impairments: diverticulitis; chronic abdominal pain; hypertension; diarrhea; and COPD. At step three, the ALJ found that plaintiff's impairments, or combination of impairments, did not meet or medically equal a listed impairment.
The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 404.1567(b) except that he must avoid concentrated exposure to dust, odors, and gases; he cannot climb ramps, stairs, ladders, ropes, or scaffolds and requires close access to a restroom.
At step four, the ALJ found plaintiff is unable to perform any past relevant work. At step five, the ALJ concluded that considering plaintiff's age, education, work experience, and residual functional capacity, jobs exist in significant numbers in the national economy that plaintiff can perform, such as assembler, hand packer, and mail clerk. Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from November 23, 2009, through the date of the decision.
ISSUES ON REVIEW
On appeal to this court, plaintiff contends the following errors were committed: (1) the Appeals Council erred in denying review of the ALJ's decision; and (2) the ALJ failed to properly evaluate plaintiff's testimony.
I. Appeal Council Decision and new evidence
Plaintiff requests this court to review the Appeals Council's decision to deny review of the ALJ's decision. Plaintiff also appears to argue that when reviewing the overall record, including the opinions of Ors. Santoro and Karamooz, the ALJ's decision is not supported by substantial evidence.
"We have held that we do not have jurisdiction to review a decision of the Appeals Council denying a request for review of an ALJ's decision, because the Appeals Council decision is a non-final agency action. See Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). With respect to plaintiff's first argument, I disagree. This court ...