United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
JAMES P. DONOHUE, Magistrate Judge.
Plaintiff Rabee Al-Mirzah appeals the final decision of the Commissioner of the Social Security Administration ("Commissioner") which denied his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33 and 1381-83f, after a hearing before an administrative law judge ("ALJ"). For the reasons set forth below, the Court recommends that the Commissioner's decision be reversed and remanded for further administrative proceedings.
I. FACTS AND PROCEDURAL HISTORY
At the time of the first administrative hearing, plaintiff was a 39 year old man with a high school education in his native Iraq. Administrative Record ("AR") at 73, 1007. His past work experience includes employment as a photo printer and a saw operator. AR at 96-103, 632, 1008-13, 1027-28. Plaintiff was last gainfully employed as a photo printer in 2001. AR at 72, 96, 619. After that, plaintiff worked for brief periods as a translator and cultural trainer for the United States Army and as a Town Car driver. AR at 72, 1011-13.
On October 7, 2005, plaintiff filed a claim for SSI payments. On October 12, 2005, he filed an application for DIB, alleging an onset date of November 18, 2001. AR at 73-79. Plaintiff asserts that he is disabled due to a head injury, back pain, sleep apnea, irritable bowel syndrome, depression, and post traumatic stress disorder. AR at 119, 139.
The Commissioner denied plaintiff's claim initially and on reconsideration. AR at 59-60, 63-70. Plaintiff requested a hearing which took place on October 16, 2008. AR at 612-40. On November 4, 2008, the ALJ issued a decision finding plaintiff not disabled and denied benefits based on a finding that plaintiff could perform unskilled sedentary jobs existing in significant numbers in the national economy such as an addresser, assembler and solderer. AR at 11-25. Plaintiff's administrative appeal of the ALJ's decision was denied by the Appeals Council.
Plaintiff subsequently filed an action challenging the Commissioner's decision. Case No. 2:09cv-1671-JLR-BAT (W.D. Wash. 2010). In July 2010, this Court issued an order reversing and remanding plaintiff's claim for further administrative proceedings to reassess plaintiff's claim at step three of the sequential evaluation process and to reconsider the medical opinions of plaintiff's treating doctor Chi Gan, M.D. AR at 737-56.
In July 2010, the Appeals Council issued an order vacating the final decision of the Commissioner and remanding plaintiff's claim to an administrative law judge. AR at 733-36. In doing so, the Appeals Council associated plaintiff's subsequent claims for DIB and SSI, finding that the remand order rendered these claims duplicative. AR at 735.
Plaintiff was 41 years old at the time of his second administrative hearing in December 2010. AR at 997-1055. On August 11, 2011, the ALJ issued a second decision finding plaintiff not disabled and denied benefits based on the finding that plaintiff could perform jobs existing in significant numbers in the national economy such as mail clerk, small product assembler, and marker. AR at 697-722. Plaintiff's administrative appeal of the second ALJ's decision was denied by the Appeals Council, AR at 641-44, making the ALJ's ruling the "final decision" of the Commissioner as that term is defined by 42 U.S.C. § 405(g). On February 10, 2014, plaintiff timely filed an action challenging the Commissioner's decision. Dkt. No. 1.
Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
III. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits when the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Id.
The Court may direct an award of benefits where "the record has been fully developed and further administrative proceedings would serve no useful purpose." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). The Court may find that this occurs when:
(1) the ALJ has failed to provide legally sufficient reasons for rejecting the claimant's evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled if he considered the claimant's evidence.
Id. at 1076-77; see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (noting that erroneously rejected evidence may be credited when all three elements are met).
IV. EVALUATING DISABILITY
As the claimant, Mr. Al-Mirzah bears the burden of proving that he is disabled within the meaning of the Social Security Act (the "Act"). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (internal citations omitted). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment which has lasted, or is expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled under the Act only if his impairments are of such severity that he is unable to do his previous work, and cannot, considering his age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The Commissioner has established a five step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step one asks whether the claimant is presently engaged in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is, disability benefits are denied. If he is not, the Commissioner proceeds to step two. At step two, the claimant must establish that he has one or more medically severe impairments, or combination of impairments, that limit his physical or mental ability to do basic work activities. If the claimant does not have such impairments, he is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does have a severe impairment, the Commissioner moves to step three to determine whether the impairment meets or equals any of the listed impairments described in the regulations. 20 C.F.R. §§ 404.1520(d), 416.920(d). A claimant whose impairment meets or equals one of the listings for the required twelve-month duration requirement is disabled. Id.
When the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, the Commissioner must proceed to step four and evaluate the claimant's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the Commissioner evaluates the physical and mental demands of the claimant's past relevant work to determine whether he can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is able to perform his past relevant work, he is not disabled; if the opposite is true, then the burden shifts to the Commissioner at step five to show that the claimant can perform other work that exists in significant numbers in the national economy, taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other work, then the claimant is found disabled and benefits may be awarded.
V. DECISION BELOW
On August 11, 2011, the ALJ issued a decision finding the following:
1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2007.
2. The claimant has not engaged in substantial gainful activity since November 18, 2001, the alleged onset date.
3. The claimant has the following severe impairments: degenerative disc disease; disc protrusion; esophageal dysmotility; irritable bowel syndrome (IBS); obstructive sleep apnea; hypertension; depression; and anxiety.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform less than a full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). He can lift/carry 20 pounds occasionally and 10 pounds frequently. He can sit/stand/walk (with normal breaks) 6 hours in an 8-hour workday. He can push/pull unlimitedly within those exertional limitations with hand/foot controls. He can occasionally climb ramps, stairs, ladders, ropes, or scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl throughout the course of a workday. He has no manipulative, visual, and communicative limitations. He is to avoid concentrated exposure to vibration and hazards, such as machinery and heights. He can understand, remember and carry out simple 1-2 step instructions. He can perform required job tasks classified at level of SVP1 or SVP2 or unskilled work. He would have the average ability to perform sustained work activities (i.e. can maintain attention and concentration; persistence, and pace in an ordinary work setting) on a regular and continuing basis (i.e. 8 hours a day, for 5 days a week, or an equivalent work schedule) within customary tolerances of employers rules regarding sick leave and absence. He can make judgments on simple work-related decisions. He can ...