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James S. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Portand Division

September 13, 2019

JAMES S.[1] Plaintiff,
v.
COMMISSIONER, Social Security Administration, Defendant.

          OPINION AND ORDER

          Robert E. Jones, United States District Judge.

         James S. (Plaintiff) seeks judicial review of the final decision by the Commissioner of Social Security (the Commissioner) denying his application for Supplemental Security Income (SSI) disability payments under Tile XVI of the Social Security Act (the Act). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Because the Commissioner's decision is not supported by substantial evidence, I REVERSE and REMAND for further proceedings.

         PROCEDURAL BACKGROUND

         Plaintiff applied for SSI in 2014, alleging a disability onset date in September 2013. After the agency denied Plaintiffs claim for disability benefits, Plaintiff received a hearing before an Administrative Law Judge (ALJ) in September 2016. The ALJ issued his decision in November 2016, finding Plaintiff not disabled. After the Appeals Council denied Plaintiffs request for review, Plaintiff timely filed this action seeking judicial review.

         STANDARD OF REVIEW

         The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is '"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Biestek v. Berryhill, ___ U.S. ___, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and '"may not affirm simply by isolating a specific quantum of supporting evidence."' Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). When the evidence is susceptible to more than one rational interpretation, the court must uphold the Commissioner's decision if it is "supported by inferences reasonably drawn from the record." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted). The reviewing court may not affirm the Commissioner's decision based on a ground that the agency did not invoke in making its decision. Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006).

         DISCUSSION

         The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). To determine whether a claimant is disabled, the ALJ uses a five-step sequential inquiry. See 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Here, steps two and five are at issue.

         At step two, the ALJ determines whether the claimant suffers from any severe impairments. See Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987). 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 Plaintiff suffered from several severe impairments, but found that Plaintiffs hearing impairment was not severe. Tr. 31.

         At step four, the ALJ found Plaintiff could not return to his past relevant work. The ALJ then proceeded to step five, where the burden of proof shifts to the Commissioner to show that the claimant can perform other work that exists in significant numbers in the national economy, considering the claimant's Residual Functional Capacity (RFC), age, education, and work experience. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Bustamonte v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). The ALJ found Plaintiff had the RFC to perform light work, with no more than frequent stooping, occasional climbing, and occasional handling and fingering with his right upper extremity, and was limited to simple, repetitive, routine tasks. Tr. 24.

         At step five, the ALJ heard testimony from a vocational expert on whether a hypothetical person with Plaintiffs RFC and background could work in any competitive job. The ALJ concluded that Plaintiff could perform light jobs that exist in significant numbers in the national economy, including the representative occupations of flagger and tanning salon attendant. Tr. 29.

         Plaintiff argues that the ALJ committed harmful error by failing to include the hearing impairment in the RFC. I agree and conclude that this case must be remanded to further develop the record.

         I. The Prior ALJ's Findings on Plaintiffs Hearing Impairment

         Plaintiff previously filed an application for SSI in 2011, which was denied in 2013. Tr. 116-27. Although the prior ALJ found Plaintiff not disabled, she also found that Plaintiffs hearing impairment was severe, and that Plaintiff was limited to environments "with no more than level 3 moderate noise (such as a business office)," and that he could not work "around hazards where auditory warnings are necessary" or "perform work that requires ...


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