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Alloway v. Berryhill

United States District Court, D. Oregon, Portland Division

October 30, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION & ORDER


         Plaintiff Randall S. Alloway seeks judicial review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of the Social Security Administration denying his application for supplemental security income pursuant to the Social Security Act. For the reasons below, the Commissioner's decision is REVERSED and REMANDED for further administrative proceedings.[1]


         Plaintiff was born February 18, 1957, and is currently sixty years old. Tr. 42. Plaintiff has an eleventh-grade education and previously worked selling billboard advertising. Tr. 419. In August 2012, Plaintiff filed an application for supplemental security income; he alleged disability onset as of December 31, 2000. Tr. 18.

         Plaintiffs previous instance of gainful employment was well over a decade ago when he worked for four years selling billboard advertising. Tr. 419. Plaintiff has not been employed since that time and, in fact, at the time of his hearing, had been homeless and living in a tent outside Portland, Oregon, for two years. Tr. 419. Plaintiff is a veteran, having served in the Marine Corps for four months before receiving an honorable discharge. Tr. 419.

         At age twelve, Plaintiff reports "he fell 30 to 40 feet when sitting on a tree vine." Tr. 410. He states that he has had back problems ever since and that they have worsened over time. Tr. 410. In addition to back problems, which appear predominately concentrated in the lower back, Tr. 381, 433-34, Plaintiff has also been diagnosed with antisocial personality disorder, adjustment disorder with a depressed mood, and chronic obstructive pulmonary disease, or COPD. Tr. 381, 410-11, 420, 433-34.

         On November 27, 2012, Tatsuro Ogisu, M.D., conducted a comprehensive musculoskeletal examination on Plaintiff. Tr. 410-16. Dr. Ogisu made a number of findings, some based on Plaintiffs subjective reporting and some based on his physical examination of Plaintiff. Tr. 410-16. Specifically, Dr. Ogisu noted that Plaintiff reported a history of lower-back problems stemming from his fall at twelve; he noted that Plaintiff reported the lower-back "flares" on a "daily basis" and that the pain is aggravated due to physical exertion, being upset, and "[s]ometimes" because of sneezing and coughing. Tr. 410. Moreover, he noted that Plaintiff "states requiring assistance with lifting and sometimes walking" and uses a cane to aid him in so doing. Tr. 411.

         As for Dr. Ogisu's physical observations, he opined that Plaintiff had no difficulty getting on and off the exam table and "goes from stand to sit and vice versa as well as sit to supine and vise versa [sic] without difficulty, " though Plaintiff does "lean[] on his cane or seeks other support." Tr. 411. He further reported a "far-head-forward" and "mildly kyphotic" posture; a flattened lumbar lordosis; uneven shoulders and pelvis with a corresponding list to the spine; tenderness over the lumbar spine; discomfort with flexion and extension of the lumbar spine; lower-extremity asymmetries; "no unusual vertebral prominence or depression"; a full range of motion at the hips, knees, and ankles, with some pain experienced in the hips; "good" reaching abilities with minimal decrease in overhead reaching; normal muscle tone; and "no obvious atrophy" in the upper extremities. Tr. 411-12. Finally, Dr. Ogisu reported full or close-to-full strength in Plaintiffs shoulder abductors, shoulder rotators, biceps, triceps, wrists, hands, hip flexors, hip abductors, knee extensors and flexors, and ankle dorsiflexors and plantar flexors. Tr. 412-13.

         Dr. Ogisu then concluded that Plaintiff had "[c]hronic lower back pain, " noting that Plaintiff was having a lot of "mechanical pain." Tr. 413. He further opined that Plaintiff could sit and stand for six hours in an eight-hour workday, walk for "at least half the time but less than 6 hours" in an eight-hour workday, and could only lift and carry up to ten pounds occasionally and five pounds frequently. Tr. 413.

         Plaintiff had a hearing in front of an administrative law judge ("ALJ") in December 2014. Tr. 34-64. In April 2015, the ALJ issued her decision, which found that the severe impairments Plaintiff suffered from did preclude his ability to perform past relevant work but did not preclude him from performing other work that exists in significant numbers in the national economy, including dishwasher, linen-room worker, and hospital housekeeper. Tr. 26-28. Accordingly, the ALJ determined Plaintiff was not disabled as defined by the Social Security Act.[2] Tr. 28. On October 6, 2016, the Appeals Council denied Plaintiffs request for review, making the ALJ's denial the Commissioner's final decision. Tr. 1. This timely appeal followed.


         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). 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)(h); 416.920(a)(4)(ii). Unless expected to result in death, an impairment 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). This impairment must have lasted or must 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 proceeds to the "residual functional capacity" ("RFC") assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's RFC. 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. ยงยง 404.1520(e); 404.1545(b)-(c); 416.920(e); ...

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