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Guembes v. Berryhill

United States District Court, D. Oregon

September 29, 2017

JOEL A. GUEMBES, Plaintiff,
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          George J. Wall, Of Attorney for Plaintiff.

          Billy J. Williams, United States Attorney, and Janice E. Hébert, Assistant United States Attorney, United States Attorney's Office; Jeffrey E. Staples, Special Assistant United States Attorney, Office of General Counsel, Social Security Administration, Of Attorneys for Defendant.


          Michael H. Simon, District Judge.

         Joel Guembes (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his application for Supplemental Security Income (“SSI”) pursuant to the Social Security Act. Because the Commissioner's decision is not based on the proper legal standards and the findings are not supported by substantial evidence, the decision is REVERSED and REMANDED for further proceedings consistent with this opinion.


         The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means “more than a mere scintilla but less than a preponderance.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

         Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.


         A. Plaintiff's Application

         Plaintiff filed his application for SSI that is the subject of this case on November 3, 2011, alleging disability beginning on April 1, 2006. AR 318. Born October 4, 1989, Plaintiff was 16 years old when he suffered a traumatic brain injury in an automobile accident, and 22 years old on his alleged disability onset date. AR 426, 137. Plaintiff alleges “short and long term memory defects, difficulty learning new material, poor impulse control, poor concentration, impaired balance, and depression.” AR 393. The Commissioner denied Plaintiff's application initially on January 30, 2012, and on reconsideration on May 15, 2012. AR 146, 158.

         On May 25, 2012, Plaintiff requested a hearing to review the denial of SSI. AR 200. Administrative Law Judge (“ALJ”) Paul G. Robeck presided over a hearing on June 13, 2013. AR 208. The ALJ issued a decision finding that Plaintiff was not disabled on June 24, 2013. AR 160. The ALJ found Plaintiff had severe impairments of cognitive disorder, mood disorder and polysubstance dependence. AR 165. The ALJ found Plaintiff was limited to jobs requiring reasoning level of one and noise level of two, could not perform work requiring balancing, working at heights, or climbing ladders, ropes, and scaffolds, and that Plaintiff should avoid concentrated exposure to hazards. AR 167. Plaintiff requested a review of the ALJ's decision by the Appeals Council on July 2, 2013. AR 268. The Appeals Council vacated and remanded the ALJ's decision on November 7, 2013, after finding several of the jobs the ALJ had identified exceeded Plaintiff's residual function capacity (“RFC”) because they required a reasoning level of two. AR 184. The Appeals Council directed the ALJ to consider new evidence; evaluate Plaintiff's impairments with the techniques described in 20 CFR § 416.920(a); evaluate Plaintiff's RFC by providing appropriate rationale and specific reference to evidence in the record; obtain supplemental evidence from a vocational expert (“VE”) to clarify the effect of Plaintiff's limitations; and identify appropriate jobs for Plaintiff and state the incidence of such jobs in the national economy. AR 185.

         A second hearing was held in front of ALJ Robeck on August 11, 2015. AR 298. On October 9, 2015, the ALJ issued his second decision, and again found Plaintiff not disabled. AR 14. The ALJ made findings consistent with his first findings regarding Plaintiff's severe impairments, inability to perform certain tasks, and an RFC limiting Plaintiff to a reasoning level of one; however, this time the ALJ found that Plaintiff was limited to a noise level of three. AR 19-23. Plaintiff requested that the Appeals Council review the ALJ's second decision. AR 10. The Appeals Council, finding no reason under their rules to review the ALJ's decision, denied Plaintiff's request for review on August 31, 2016, and the ALJ's decision became the final decision of the Commissioner. AR 1. Plaintiff seeks review of that decision.

         B. The Sequential Analysis

         A claimant is disabled if he or 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)(1)(A). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment “severe” under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or equal” one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's “residual functional capacity.” This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. ยงยง 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), ...

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