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Kenneth M. C. v. Berryhill

United States District Court, D. Oregon

November 15, 2018

KENNETH M. C., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          Jolie A. Russo, United States Magistrate Judge

         Kenneth M. C.1 (“plaintiff”) brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his application for Title II Disability Insurance Benefits (“DIB”) under the Social Security Act (“Act”). All parties have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's decision is reversed and this case is remanded for the immediate payment of benefits beginning December 17, 2015.

         PROCEDURAL BACKGROUND

         On August 19, 2013, plaintiff applied for DIB, alleging disability as of January 22, 2013. Tr. 168. His application was denied initially and upon reconsideration. Tr. 78-88, 90-102. On January 12, 2016, a hearing was held before an Administrative Law Judge (“ALJ”), wherein plaintiff was represented by counsel and testified, as did Martha C., plaintiff's wife, and a vocational expert (“VE”). Tr. 37-78. On May 26, 2016, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 15-36. After the Appeals Council denied his request for review, plaintiff filed a complaint in this Court. Tr. 1-7.

         STATEMENT OF FACTS

         Born on November 10, 1950, plaintiff was 62 years old on the alleged onset date and 65 years old at the time of the hearing. Tr. 37, 181. Plaintiff died of pancreatic cancer on September 14, 2017, at the age of 66. Pl.'s Opening Br. Ex. A (doc. 12). He graduated from high school and worked previously as an automobile mechanic, van driver, and shuttle driver. Tr. 186, 271. Plaintiff alleges disability due to post-traumatic stress disorder (“PTSD”), depression, prostate cancer, high blood pressure, eye issues, and back and left foot pain. Tr. 80, 185.

         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 five step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled.

         At step two, the Commissioner evaluates whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment, he is not disabled.

         At step three, the Commissioner determines whether the claimant's impairments, either singly or in combination, meet or equal “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 140-41; 20 C.F.R. § 404.1520(d). If so, the claimant is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         At step four, the Commissioner resolves whether the claimant can still perform “past relevant work.” 20 C.F.R. § 404.1520(f). 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, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566.

         THE ALJ'S FINDINGS

         At step one of the five step sequential evaluation process outlined above, the ALJ found plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 20, 23. At step two, the ALJ determined plaintiff's myocardial infraction was medically determinable and severe after December 17, 2015. Tr. 27. At step three, the ALJ found that plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Id.

         Because plaintiff did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected his ability to work. The ALJ resolved that plaintiff had the residual functional capacity (“RFC”) to perform the full range of light work. Tr. 28.

         At step four, the ALJ determined plaintiff could not perform any past relevant work. Tr. 29. At step five, the ALJ concluded that there were a significant number of jobs in the national and local economy that plaintiff could perform despite his impairments, such as service writer or parts clerk. Tr. 30.

         DISCUSSION

         Plaintiff argues that the ALJ erred by: (1) finding PTSD not severe at step two; (2) rejecting Martha C.'s lay testimony; and (3) ...


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