United States District Court, D. Oregon, Portland Division
RANDALL S. ALLOWAY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION & ORDER
D. CLARKE, MAGISTRATE JUDGE
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
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.
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.
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.
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.
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.
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.
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. 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.
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.
§§ 404.1520(e); 404.1545(b)-(c); 416.920(e);