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Mowdy v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

October 3, 2017

JOHNNY R. MOWDY, Plaintiff,



         Plaintiff Johnny R. Mowdy (“Mowdy”) seeks judicial review of the final decision by the Commissioner of Social Security (“Commissioner”)[1] finding him disabled only after he reached age 50 and, therefore, denying portions of his applications for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 USC §§ 401-33, and Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 USC §§ 1381-83f.

         This court has jurisdiction pursuant to 42 USC § 405(g) and 42 USC § 1383(c)(3). Both Mowdy and the Commissioner have consented to allow a Magistrate Judge to enter final orders and judgment in this case. ECF #14; FRCP 73; 28 USC § 636(c). For the reasons set forth below, this court concludes that the Commissioner erred at step five by finding that Mowdy can perform work existing in substantial numbers in the economy. The record supports no conclusion but that, due to nonexertional restrictions the Commissioner failed to account for, Mowdy is incapable of performing the only job identified by the Commissioner as within his exertional capabilities. Accordingly, to the extent it found Mowdy not disabled prior to reaching age 50, the Commissioner's April 25, 2016, decision is REVERSED, and this case is REMANDED for an award of benefits.


         In late January 1996, at age 31, Mowdy was partially ejected and sustained serious injuries in a motor-vehicle accident after the car in which he was riding as a passenger hit a pole. Tr. 252, 303. His injuries included an orbital basilar skull fracture and bilateral cerebral contusions, resulting in “serious neuropsychological deficits.” Tr. 252, 303. After nearly two months of trauma treatment, Mowdy was transferred into psychiatric care at Oregon Health & Science University (“OHSU”) due to psychomotor agitation and aggressive behavior. Tr. 245. At that time, he required help with activities of daily living and was placed in constant restraints and locked seclusion. Tr. 245, 495. On March 27, 1996, Mowdy was transferred and court-committed to Oregon State Hospital (“OSH”). Tr. 303-05.

         After eight months at OSH, Mowdy was discharged in early December 1996 to live with his mother. His diagnoses at discharge included a history of dementia and personality changes secondary to head injury, status post bilateral intraparenchymal hemorrhages, and orbital basilar skull fractures. Tr. 301. Follow-up examinations with OHSU neurologists throughout 1997 showed some improvement; this resulted in the neurologists lowering the dosage and eliminating some of the medications from Mowdy's treatment regimen. Tr. 235-43.

         Mowdy received DIB from January 27, 1996, through July 26, 2000, because he met a listed impairment based on his head injury and residual symptoms. Tr. 146, 766, 908-09. In late 1998, Mowdy faced criminal charges stemming from alleged incidents predating his head injuries. This resulted in evaluations of whether he was capable of assisting in his own defense. Tr. 493-503 (December 1998), 718-22 (March 1999). Eventually, Mowdy entered a no contest plea and was sentenced to 115 months in prison. Tr. 39, 505. As a result of his incarceration, Mowdy's benefits were terminated for “technical reasons.” Tr. 909. Mowdy earned a GED during his incarceration. Tr. 142. He was released from prison in June 2006 and moved in with his sister. Tr. 31, 185.

         Mowdy filed claims for DIB and SSI on July 24, 2006 (“2006 Applications”). Tr. 79-80, 144-45, 762. Following denials of those claims at the initial, reconsideration, and Administrative Law Judge (“ALJ”) levels, Mowdy filed a second set of applications for DIB and SSI on February 24, 2009 (“2009 Applications”). Tr. 9-21 (ALJ decision dated February 3, 2009), 762, 1209-13. Over the next three years, Mowdy's applications ran on parallel tracks. On January 20, 2010, the Appeals Council denied Mowdy's request for review of the ALJ's denial of his 2006 Applications. Tr. 1-3. Meanwhile, his 2009 Applications were denied at the initial, reconsideration, and ALJ level. Tr. 856-61 (ALJ decision dated December 21, 2010). Mowdy requested review of the decision on his 2009 Applications by the Appeals Council. He also appealed the decision on the 2006 Applications to this court, resulting in an order remanding the case for further proceedings. Tr. 867-70, Mowdy v. Comm'r of Soc. Sec., Civil No. 6:10-cv-6063-HO, Order (February 16, 2011).

         After some wrangling (Tr. 1076-78, 1238), the Appeals Council consolidated Mowdy's 2006 and 2009 Applications. Tr. 763. Thereafter, on April 11, 2013, an additional administrative hearing took place before ALJ John Michaelsen. Tr. 789-833. On October 9, 2014, the ALJ issued a decision (“October 2014 Decision”) finding no disability from August 1, 2000, (the date of the prior termination) forward. Tr. 762-78.

         Mowdy requested review by the Appeals Council, which accepted jurisdiction and issued a partially-favorable decision on April 25, 2016 (“April 2016 Decision”). Tr. 732-36. The Appeals Council found that Mowdy was not disabled prior to his 50th birthday, and therefore adopted the ALJ's October 2014 Decision denying his request for DIB from August 1, 2000 through his date last insured of December 31, 2003. Tr. 733. However, the Appeals Council found Mowdy disabled from the time he reached age 50 based upon a change in age category, i.e., “closely approaching advanced age.” Tr. 735. Mowdy, however, maintains he was disabled prior to attaining age 50. The April 2016 Decision is the Commissioner's final decision subject to review by this court. 20 CFR §§ 404.981, 416.1481, 422.210.


         Disability is defined under the Act 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 12 months.” 42 USC § 423(d)(1)(A). The Commissioner engages in a five-step sequential inquiry to determine whether a claimant meets that definition. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)); 20 CFR §§ 404.1520, 416.920.

         At step one, the Commissioner considers the claimant's work activity. If the claimant is performing substantial gainful activity, he will not be found disabled. 20 CFR §§ 404.1520(a)(4)(i) & (b), 416.920(a)(4)(i) & (b).

         At step two, the Commissioner considers the severity of the alleged physical or mental impairment. If the impairment or combination of impairments are not deemed severe or do not meet the 12-month durational requirement, the claimant will not be found disabled. 20 CFR §§ 404.1520(a)(4)(ii) & (c), 416.920(a)(4)(ii) & (c).

         At step three, the Commissioner again considers the severity of the alleged impairment. If the severe impairment or combination of impairments meets or equals an impairment listed in 20 CFR § 404-p, App. 1 (Listing of Impairments), the claimant will be found disabled. 20 CFR §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d).

         If the claimant is not found disabled at step three, the Commissioner then assesses medical and other relevant evidence to determine the claimant's residual functional capacity (“RFC”) to perform work-related activities, despite the limitations imposed by his severe impairment or combination of impairments. 20 CFR §§ 404.1520(e), 416.920(e); Social Security Ruling 96-8p, 1996 WL 374184 (July 2, 1996).

         At step four, the Commissioner considers the RFC and the claimant's past relevant work. If the claimant can perform past-relevant work, he will not be found disabled. 20 CFR §§ 404.1520(a)(4)(iv) & (e), 416.920(a)(4)(iv) & (e). If the claimant cannot perform past relevant work, then at step five the Commissioner assesses the claimant's RFC, age, education, and work experience to determine whether the claimant can transition to other work in the national economy. 20 CFR §§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) & (g). If so, the claimant is not disabled; if not, he is disabled.

         The claimant bears the initial burden of establishing disability at steps one through four. Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). However, at step five, the burden of proof shifts to the Commissioner to establish that the claimant can perform other work in the national economy considering the claimant's age, education, work experience, and RFC. Id. (citation omitted); 20 CFR § 404.1520(g) & 20 CFR § 416.920(g). Work exists in the national economy when there a “significant number of jobs” the claimant can do with their physical, mental, and vocational abilities. 20 CFR §§ 404.1566(b), 416.966(b).

         THE ...

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