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Harber v. Berryhill

United States District Court, D. Oregon

May 1, 2018

TIMOTHY HARBER JR., Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration Defendant.

          FINDINGS AND RECOMMENDATION

          JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Timothy Harber, Jr., brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) terminating plaintiff's supplemental security income (“SSI”). The Commissioner's decision should be reversed and remanded for further proceedings.

         PROCEDURAL BACKGROUND

         In February 2009, plaintiff was found disabled as of April 1, 2001. On April 27, 2010, the Commissioner determined plaintiff was no longer disabled. Tr. 128. That determination was upheld after a reconsideration hearing by a state agency Disability Hearing Officer. Tr. 152. The plaintiff then filed a written request for review by an Administrative Law Judge (“ALJ”). Tr. 172. Following the hearing on February 21, 2012, the ALJ issued a decision finding plaintiff not disabled. Tr. 74. Plaintiff appealed that decision, and the Appeals Council remanded with instructions for the ALJ to more fully develop the record regarding medical statements about plaintiff's abilities despite his impairments. Tr. 95. The Appeals Council also instructed the ALJ to further consider plaintiff's residual functional capacity (“RFC”). Tr. 95.

         After remand, the ALJ held a second hearing on September 12, 2013. Tr. 30. At the hearing, both plaintiff and a vocational expert testified. On October 23, 2013, the ALJ issued a decision finding plaintiff not disabled. Tr. 8. Plaintiff requested review, and the Appeals Council denied the request. Tr. 1. Plaintiff then brought this action.

         STATEMENT OF FACTS

         Plaintiff was eighteen years old on the date of redetermination. Tr. 393. Plaintiff has no past relevant work. Tr. 104. Plaintiff graduated high school with the help of special education support. Tr. 391. Plaintiff alleges disability due to a diagnosis of Asperger's disorder and pervasive development disorder. Tr. 393.

         As a part of a school-related work experience course, plaintiff worked at a flower shop. Tr. 394. Plaintiff also participated in a Youth Training Program (“YTP”). Tr. 394. “The purpose of the program is to prepare youth with disabilities for employment or career related post secondary education or training.” Tr. 394. Through the YTP, plaintiff began a training program for custodial work through the Portland Rehabilitation Center. Tr. 395. After plaintiff completed training, he was hired to work part-time on weekends. Tr. 31. Since June 2012, plaintiff has maintained part-time employment as a janitor at the East Portland Community Center. Tr. 34.

         STANDARD OF REVIEW

         The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The court must weigh both the evidence that supports and detracts from the [Commissioner's] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a seven-step evaluation process set forth in 20 C.F.R. § 416.994 to determine whether a claimant continues to be disabled.[1] See Khampunbuan v. Astrue, 333 Fed.Appx. 217, 218 (9th Cir. 2009). At step one, the Commissioner must determine whether the claimant has an impairment or combination of impairments that meets the criteria of a listed impairment set forth in 20 C.F.R. part 404, subpart P, app. 1. If the claimant does, his disability continues. 20 C.F.R. § 416.994(b)(5)(i).

         If the claimant's impairment or combination of impairments does not meet or equal an impairment listed, the second step requires the Commissioner to determine whether medical improvement has occurred. 20 C.F.R. § 416.994(b)(5)(ii). If medical improvement has occurred, the analysis proceeds to the third step; if not, the analysis skips to the fourth step. Id.

         If medical improvement has occurred, the third step requires the Commissioner to determine whether medical improvement is related to the ability to work; i.e., whether the recipient's RFC has increased since the most recent favorable decision. 20 C.F.R. § 416.994(b)(5)(iii). If medical improvement is not related to the claimant's ability to work, the analysis proceeds to step four; if it is, it proceeds to step five. Id.

         If medical improvement has not occurred or if it is not related to the recipient's ability to work, the fourth step requires the Commissioner to determine whether an exception applies. 20 C.F.R. § 416.994(b)(5)(iv). Under the first group of exceptions, the Commissioner can find a claimant no longer disabled even though he has not medically improved if he is able to engage in substantial gainful activity. 20 C.F.R. § 416.994(b)(3). If one of these exceptions applies, the analysis proceeds to step five. 20 C.F.R. § 416.994(b)(5)(iv). Under the second group of exceptions, in certain situations not applicable here, the Commissioner can find a recipient no longer disabled without finding medical improvement or an ability to engage in substantial gainful activity. 20 C.F.R. § 416.994(b)(4). If none of the exceptions apply, the recipient continues to be disabled. 20 C.F.R. § 416.994(b)(5)(iv).

         The fifth step requires the Commissioner to determine whether all the recipient's current impairments in combination are “severe, ” which means they significantly limit the claimant's ability to do basic work activities. 20 C.F.R. § 416.994(b)(5)(v). If not, the claimant is no longer disabled. Id.

         If the claimant's current impairments in combination are severe, the sixth step requires the Commissioner to determine whether the claimant has a sufficient RFC, “based on all [his] current impairments, ” to perform any past relevant work. 20 C.F.R. § 416.994(b)(5)(vi). If so, he is no longer disabled. Id.

         If the claimant is unable to do his past work or if he has none, the seventh step requires the Commissioner to determine, using the claimant's RFC, whether the claimant can perform any other substantial gainful work. 20 C.F.R. § 416.994(b)(5)(vii). If not, the claimant continues to be disabled. Id.

         THE ALJ'S FINDINGS

         At step one of the seven-step sequential evaluation process outlined above, the ALJ found plaintiff was diagnosed with Asperger's disorder and pervasive development disorder, with plaintiff's impairments meeting or medically equaling a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 13. At step two, the ALJ determined medical improvement occurred as of April 27, 2010, due to a decrease in the medical severity of plaintiff's ...


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