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James B. v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

December 19, 2018

JAMES B., [1] Plaintiff,


          Ann Aiken United States District Judge

         Plaintiff James B. brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiffs application for Supplemental Security Income ("SSI") on February 16, 2017. For the reasons set forth below, the Commissioner's decision is REVERSED and REMANDED for further proceedings.


         Plaintiff was born on August 27, 1982. On October 27, 2006, plaintiff was found unresponsive on the street suffering from a traumatic brain injury. He was taken to the hospital and underwent a craniotomy to address an intracerebral hemorrhage and subdural hematoma, subsequent to which he was observed to be suffering from certain cognitive deficits. He remained in the hospital for 28 days. He developed epilepsy and was hospitalized multiple times following seizures in the subsequent years. At the time of his administrative hearing, plaintiff worked part-time as a screen printer and warehouse worker-a job he acquired with the assistance of a vocational specialist who identifies employers willing to accommodate workers with functional limitations, Plaintiff applied for SSI on December 16, 2014 alleging a disability onset date of November 15, 2014. Following denials at the initial and reconsideration levels, an administrative law judge ("ALJ") held a hearing at which the claimant and a vocational expert ("VE") testified, after which she issued an unfavorable decision on February 16, 2017. After the Appeals Council denied plaintiffs request for review, plaintiff filed a timely complaint in this Court.


         42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration's disability determinations: "The court shall have power to enter ... a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." The district court must affirm the ALJ's decision unless it contains legal error or lacks substantial evidentiary support. Garrison v. CoJvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing Stout v. Comm'r of Soc. Sec, 454 F.3d 1050, 1052 (9th Cir. 2006)). Harmless legal errors are not grounds for reversal. Burch v. Barnhart, 400 F, 3d 676, 679 (9th Cir. 2005) (citation omitted). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Gutierrez v. Comm'r of Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014) (citation and internal quotation marks omitted). The complete record must be evaluated and the evidence that supports and detracts from the ALJ's conclusion must be weighed, Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may not substitute its judgment for that of the Commissioner." Edhind v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).


         The initial burden of proof rests upon the plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the plaintiff 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).

         To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential analysis, determining: "(1) whether the claimant is 'doing substantial gainful activity'; (2) whether the claimant has a 'severe medically determinable physical or mental impairment' or combination of impairments that has lasted for more than 12 months; (3) whether the impairment 'meets or equals' one of the listings in the regulations; (4) whether, given the claimant's 'residual functional capacity,' the claimant can still do his or her 'past relevant work' and (5) whether the claimant 'can make an adjustment to other work.'" Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 20 C.F.R. §§ 404.1520(a), 416.920(a)).

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity ("SGA") even though his earnings were technically above the income dollar threshold for SGA. This was because, based on the contents of a work activity questionnaire submitted by plaintiffs employer, the ALJ found that plaintiff was only "60 percent as productive as other employees" and received "special help," although she did not reference the questionnaire explicitly. Tr. 78. At step two, the ALJ found that plaintiff "has the following severe impairments: seizure disorder, major neurocognitive disorder status-post traumatic brain injury and unspecified depressive disorder." Tr. 79. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment.

         The ALJ then assessed plaintiffs residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(e); § 416.920(e). The ALJ found that plaintiff

has the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant can occasionally climb ramps and stairs and occasionally balance. He can do work that does not involve climbing ladders, ropes, or scaffolds. He can do simple routine tasks and can do work that does not involve exposure to hazards.

Tr. 82. No. mention was made of plaintiff s productivity limitation or its underlying cause. At step four, the ALJ found plaintiff "unable to perform any past relevant work," Tr. 89. At step five, the ALJ considered plaintiffs age, education, work experience, and RFC and found that there were other jobs existing in significant numbers in the national economy that plaintiff could perform, including floor cleaner, laundry ...

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