United States District Court, D. Oregon, Portland Division
JOHNNY R. MOWDY, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
YIM YOU UNITED STATES MAGISTRATE JUDGE.
Johnny R. Mowdy (“Mowdy”) seeks judicial review
of the final decision by the Commissioner of Social Security
(“Commissioner”) 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.
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.
HISTORY AND BACKGROUND FACTS
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.
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.
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,
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).
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.
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,
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.
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).
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).
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).
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).
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.
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).