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Johnny K. v. Berryhill

United States District Court, D. Oregon

February 4, 2019

JOHNNY K., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Johnny K. seeks judicial review of the Social Security Commissioner's final decision denying his applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Plaintiff argues the Administrative Law Judge (ALJ) erred in (1) failing to explain why he did not consider plaintiff's borderline age situation when plaintiff turned 55 years old less than three months after the decision; (2) rejecting plaintiff's testimony without providing clear and convincing reasons for doing so; and (3) failing to develop the record fully and fairly. I reverse the Commissioner's decision finding plaintiff not disabled, and remand for (1) an immediate award of benefits starting January 4, 2017; and (2) further proceedings on an open record to determine whether plaintiff was disabled before January 4, 2017.


         Plaintiff applied for disability insurance benefits and supplemental security income in December 2013, alleging disability beginning in June 2010. Tr. 22. His applications were denied initially and on reconsideration.

         In September 2016, plaintiff received a hearing before an ALJ. Tr. 44-100. In January 2017, the ALJ issued his decision finding plaintiff not disabled. Tr. 22-32. In May 2017, the Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Plaintiff now seeks judicial review.


         To establish disability, a 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 uses the familiar five-step sequential process to determine whether a claimant has established disability. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987). In the first four steps of the process, the claimant has the burden of proof, and at the fifth step the burden shifts to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

         At the first step of the sequential process, the ALJ found that plaintiff had not engaged in substantial gainful employment since June 10, 2010, the date of alleged onset of disability. Tr. 24. Plaintiff met the insured status requirements through December 31, 2011.

         At the second step, the ALJ considered the severity of plaintiff's physical and mental impairments. See Yuckert, 482 U.S. at 140-41. An impairment is “severe” if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for twelve months or longer. See id., 482 U.S. at 141. Here, the ALJ found that plaintiff had the severe impairments of degenerative joint disease of the cervical and lumbar spines; right shoulder AC joint and sternoclavicular arthritis; partial right rotator cuff tear with bicep tendinitis; right elbow arthritis; and headaches. Tr. 24. The ALJ also found that the medical evidence showed “a possible cognitive disorder with reported subjective impairment and decline in cognitive function, a mild depressive disorder due to another medical condition with depressive features, and somatic disorder with predominant pain.” Tr. 25. The ALJ found, however, that “these mental disorders do not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and are therefore non-severe.” Tr. 25.

         At the third step, the ALJ determined plaintiff's impairments did not meet or equal any listed impairments that would preclude substantial gainful activity. Tr. 26-27. The ALJ then assessed plaintiff's residual functional capacity (RFC). The RFC is the Commissioner's estimate of a claimant's ability to perform sustained, work-related physical and mental activities on a regular and continuing basis, despite the limitations imposed by the claimant's impairments. See 20 C.F.R. § 404.1545(a). The ALJ found that plaintiff had the RFC to perform light work, with the additional limitations that he could lift twenty pounds occasionally and ten pounds frequently; could sit, stand, and walk for six hours each during an eight-hour day; could frequently kneel, crouch, and crawl; could push or pull occasionally with his right upper arm because of mild elbow spurring; must avoid concentrated exposure to vibrations; and could perform only unskilled work tasks because of his progressive memory loss. Tr. 27. The ALJ further found that beginning December 17, 2013, plaintiff “required an option to sit 15 minutes after standing 15 minutes, ” and therefore needed “a sit/stand option with maximum standing or walking in 15 minute increments.” Tr. 27.

         At the fourth step, the ALJ, with the assistance of a vocational expert who testified at the hearing, considered whether a hypothetical person with plaintiff's RFC could perform plaintiff's past relevant work. See Yuckert, 482 U.S. at 141. Plaintiff's past relevant work included a facilities maintenance engineer, which is classified as a semi-skilled, medium-level job, although plaintiff performed it as a heavy-level job; aircraft prep painter, which is classified as a semiskilled, light-level job, although plaintiff performed it as a medium-level job; or equipment-ammunition laborer, an unskilled medium-level job. Tr. 31. The vocational expert testified that a person with plaintiff's RFC could not perform his past relevant work.

         At the fifth step, the ALJ determined whether plaintiff, despite his impairments, could perform any jobs that exist in significant numbers in the national economy. See Yuckert, 482 U.S. at 142. After considering the vocational expert's testimony on available occupations for a person with plaintiff's RFC, the ALJ found that plaintiff could work as a mail sorter; a storage facility rental clerk[2]; and price marker, which are all light, unskilled jobs. The ALJ therefore found plaintiff not disabled through January 4, 2017, the date of the decision.


         This court must affirm the Commissioner's decision if the decision is based on proper legal standards and the findings of fact are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Batson v. Comm'r., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence” means “more than a mere scintilla but less than a preponderance.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. If the evidence is susceptible of more than one rational interpretation, the court must uphold Commissioner's conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).


         I. The ALJ's Failure to Adequately Consider Plaintiff's ...

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