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Johnny T. v. Berryhill

United States District Court, D. Oregon, Eugene Division

July 2, 2019

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


          Ann Aiken United States District Judge.

         Johnny T. ("Plaintiff) 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 Disability Insurance Benefits ("DIB") under Title II of the Act. For the reasons set forth below, the Commissioner's decision is REVERSED and REMANDED for an immediate award of benefits.


         Plaintiff filed an application for DIB in September of 2014 alleging disability due to back injuries. Specifically, Plaintiff alleged a compression fracture of the LI vertebra and a fracture of the T12 vertebra, high blood pressure, osteoporosis of the spine, chronic pain, and depression. The application was initially denied and then again upon reconsideration. Following a hearing, an Administrative Law Judge ("ALJ") found Plaintiff not disabled in a written decision in June of 2017. The Appeals Council denied review, and Plaintiff subsequently filed a complaint in this Court.


         The district court must affirm the Commissioner's decision so long as 1) it is based on proper legal standards and 2) its findings are supported by substantial evidence. 42 U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). The district court reviews the record as a whole, and must weigh both evidence that supports and evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). If evidence presents the possibility for multiple interpretations and the Commissioner's decision is rational, the decision must be affirmed because "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).


         The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, 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[.J" 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(a)(4); id. § 416.920(a)(4). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of September 5, 2014. Tr. 22; 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id. §§ 416.920(a)(4)(i), (b). At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease and compression fractures in the thoracic and lumbar spine. Tr. 22; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c); id. §§ 416.920(a)(4)(ii), (c). At step three, the ALJ found that Plaintiffs impairments, whether considered singly or in combination, did not meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Tr. 23; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d); id. §§ 416.920(a)(4)(iii), (d).

         The ALJ found Plaintiff had the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 404.1567(b) except that Plaintiff could only stand or walk for four hours in an eight-hour workday; occasionally climb ramps and stairs; never climb ladders, ropes or scaffolds; occasionally stoop, kneel, crouch, and crawl; occasionally reach overhead bilaterally; avoid exposure to hazards such as unprotected heights and moving mechanical parts; and must be provided with a sit/stand option defined as the ability to change position after 30 to 60 minutes for three to five minutes while remaining on task. Tr. 23; 20 C.F.R. §§ 404.1520(a)(4)(iv), (f); id. §§ 416.920(a)(4)(iv), (f).

         At step four, the ALJ found Plaintiff was able to perform his past relevant work as a service manager. Tr. 28. By finding Plaintiff capable of performing his past relevant work, the ALJ determined that Plaintiff was not disabled and did not proceed to step five. 20 C.F.R. § 404.1520(a)(4); id. § 404.1520(f).


         Plaintiff alleges that the ALJ erred by (1) concluding that Plaintiff could perform his past work; (2) discounting Plaintiffs testimony about the severity of his symptoms; (3) rejecting the medical opinion of Dr. Vanderburgh; and (4) rejecting the lay witness testimony of Plaintiffs wife, friends, and former employer.

         The Commissioner's brief does not contest any of these errors but requests a remand for further proceeding because he concedes that the ALJ erred at step four of the sequential evaluation. This is because while the vocational expert ("VE") testified that Plaintiff was not capable of performing his former job as a service manager as that job was generally performed, the ALJ disagreed and found that Plaintiff was capable of performing his past service manager job. The ALJ ...

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