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Michael P. v. Berryhill

United States District Court, D. Oregon, Portland Division

January 31, 2019

MICHAEL P.[1], Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Billy J. Williams UNITED STATES ATTORNEY Renata Gowie ASSISTANT UNITED STATES ATTORNEY Thomas M. Elsberry SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration Attorney for Defendant

          OPINION & ORDER

          MARCOA HERNANDEZ UNITED STATES DISTRICT JUDGE

         Plaintiff Michael P. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB).[2] I reverse the Commissioner's decision.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB on December 2, 2013[3], alleging an onset date of June 1, 2006. Tr. 245-48. His application was denied initially and on reconsideration. Tr. 75, 77-85, 132-36 (Initial); Tr. 97, 99-109, 147-49 (Recon.). On February 29, 2016, Plaintiff appeared for a hearing before an Administrative Law Judge (ALJ). Tr. 69-74. He was not represented by counsel. Id. No substantive testimony was provided at the hearing, which was reset to allow Plaintiff to obtain representation. Id. On July 15, 2016, Plaintiff again appeared for a hearing and this time he was represented by counsel. Tr. 36-68. On August 30, 2016, the ALJ found Plaintiff not disabled on his DIB claim. Tr. 15-35. The Appeals Council denied review. Tr. 1-5.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on having epilepsy, anxiety, memory impairment, coordination issues, persistent twitch, and severe depression. Tr. 265. At the time of the July 2016 hearing, he was sixty-four years old. Tr. 245 (showing date of birth). He has one year of college and has past work experience as a carpenter, cleaner, and metal collector. Tr. 266.

         SEQUENTIAL DISABILITY EVALUATION

         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), 1382c(3)(a).

         Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

         In the first step, 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). In step two, the Commissioner determines 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), 416.920(c). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether plaintiff's impairments, 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 141; 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.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. ยงยง 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the ...


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