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Foley v. Berryhill

United States District Court, D. Oregon, Portland Division

November 21, 2017

DANIEL FOLEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Robyn M. Rebers Robyn M. Rebers, LLC Attorney for Plaintiff.

          Billy J. Williams United States Attorney, District of Oregon Janice E. Hébert Assistant United States Attorney Lisa Goldoftas Social Security Administration SSA Office of the General Counsel Attorney for Defendant.

          OPINION & ORDER

          MARCO A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE

         Plaintiff Daniel Foley seeks judicial review of the Social Security Commissioner's final decision denying his application for Social Security Disability Insurance (“DIB”) and Supplemental Security Income (“SSI”) benefits under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 401-33, 1281-83f. Because the Commissioner's decision contains legal error and the record is not fully developed, the decision is reversed and remanded for further administrative proceedings.

         BACKGROUND

         Plaintiff has a high school education and was 54 years old on the alleged disability onset date of July 1, 2010 (thus an individual closely approaching advanced age), and was 57 years old (an individual of advanced age) when he filed his application for benefits on September 16, 2013. Tr. 16, 23, 110, 112.[1] Plaintiff's application was denied initially and upon reconsideration. A hearing was held before Administrative Law Judge (“ALJ”) Vadim Mozyrsky on October 22, 2015. Tr. 25. ALJ Mozyrsky issued a decision on December 7, 2015, in which he found Plaintiff not to be disabled. Tr. 20. Plaintiff sought review by the Appeals council, but was denied, making ALJ Mozyrsky's decision the final decision Plaintiff now challenges in this Court. Tr. 8.

         SEQUENTIAL DISABILITY ANALYSIS

         A claimant is disabled if 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).

         Disability claims are evaluated according to a five-step procedure. Baxter v. Sullivan, 923 F.2d 1391, 1395 (9th Cir. 1991). The claimant bears the burden of proving disability. Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). First, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; see 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         At step three, the Commissioner determines whether the impairment meets or equals “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; see 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         At step four, the Commissioner determines whether the claimant can still perform “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled. If he cannot perform past relevant work, the burden shifts to the Commissioner at step five.

         At step five, the Commissioner must establish that the claimant can perform other work which exists in the national economy. Yuckert, 482 U.S. at 141-42; see 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). Here, the ALJ considers the “vocational factors” of the claimant's age, education, and past work experience, along with the claimant's RFC, to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 540 U.S. 20, 25 (2003); 20 C.F.R. §§ 416.920(a)(4)(v), 416.960(c). If the Commissioner meets its burden and proves that the claimant is able to perform other work, he is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         THE ALJ'S DECISION

         The ALJ determined that Plaintiff met the insurance status requirements of the Act through March 31, 2015. Tr. 18. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. At step two, the ALJ found that Plaintiff's congestive heart failure, obesity, and lumbago were severe impairments. Id. Furthermore, at step three the ALJ found that Plaintiff's impairments did not meet or equal a listed impairment. Tr. 19. Next, the ALJ determined that Plaintiff had the RFC to perform the full range of light work. Tr. 19-20. At step four, the ALJ determined that Plaintiff could not perform any past relevant work. Tr. 23.

         At step five, the ALJ concluded that given Plaintiff's age, education, work experience, and RFC, he had work skills that were “transferable to other occupations with jobs existing in significant numbers in the national economy[.]” Tr. 24. Specifically, the ALJ found that Plaintiff's skills were transferrable to the “representative occupation” of short-order cook and he could also perform the jobs of production assembler, ...


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