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Brenneman v. Berryhill

United States District Court, W.D. Washington, Tacoma

May 26, 2017

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




         Plaintiff, Reditha D. Brenneman, brings this action pursuant to 42 U.S.C. §§ 405(g), and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security denying her application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. Dkt. 1. This matter has been fully briefed and, after reviewing the record in its entirety, the Court REVERSES the Commissioner's final decision and REMANDS this case for further administrative proceedings.


         In June 2011, Ms. Brenneman filed an application for DIB alleging disability commencing on June 1, 2011. Tr. 22, 272. The application was denied initially and upon reconsideration. Tr. 162-168, 170-174. A hearing was held before Administrative Law Judge (ALJ) Riley Atkins on January 2, 2013. Tr. 75-103. ALJ Atkins issued a decision on January 17, 2013, denying Ms. Brenneman's claim. Tr. 132-153. Ms. Brenneman sought review of that decision and on May 2, 2014, the Appeals Council issued an order vacating the hearing decision of January 17, 2013, and remanding the case back to the ALJ. Tr. 154-159. A subsequent hearing was held before ALJ Atkins on November 24, 2014. Tr. 47-73. Ms. Brenneman was represented by counsel, Teal Parham. Id. Jenipher Gaffney, a vocational expert (VE), also testified at the hearing. Id. On December 22, 2014, ALJ Atkins issued an unfavorable decision. Tr. 22-40. The Appeals Council denied review, and the ALJ's decision became final. Tr. 1-6. Ms. Brenneman then timely filed this judicial action.


         Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).


         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 are 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).


         As the claimant, Ms. Brenneman bears the burden of proving that she 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 medically determinable physical or mental impairment which can be expected to result in death or which has lasted, or is expected to last, for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled under the Act only if her impairments are of such severity that she is unable to do her previous work, and cannot, considering her 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. Tackett, at 1098-99. At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be “disabled” or “not disabled” at any step in the sequence, the inquiry ends without the need to consider subsequent steps. Id.; 20 C.F.R. §§ 404.1520, 416.920. Step one asks whether the claimant is presently engaged in “substantial gainful activity” (SGA). 20 C.F.R. §§ 404.1520(b), 416.920(b).[2] If she is, disability benefits are denied. Id. If she is not, the Commissioner proceeds to step two. At step two, the claimant must establish that she has one or more medically severe impairments, or combination of impairments, that limit her physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have such impairments, she is not disabled. Id. 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 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 she can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is able to perform her past relevant work, she 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 claimant is able to perform other work, then she is not disabled; if the opposite is true, she is disabled and benefits may be awarded. Id.


         Utilizing the five-step disability evaluation process, [3] the ALJ found that Ms. Brenneman last met the insured status requirements of the Social Security Act on December 31, 2013. Tr. 25. The ALJ further found that:

Step one: Ms. Brenneman did not engage in substantial gainful activity from June 1, 2011, the alleged onset date, through her date last insured of December 31, 2013.
Step two: Through the date last insured, Ms. Brenneman had the following severe impairments: fibromyalgia, history of Meniere's disease (controlled), mild obstructive pulmonary disease, and obesity.
Step three: Through the date last insured, these impairments did not meet or equal the requirements of a listed impairment.[4]
Residual Functional Capacity: Through the date last insured, Ms. Brenneman had the residual functional capacity (RFC) to perform a mixture of sedentary and light work as defined in 20 C.F.R. §§ 404.1567(a) except she can occasionally lift and/or carry 20 pounds and frequently lift and/or carry 10 pounds. She should not be required to stand and/or walk for more than two hours in an eight-hour workday. She has no specific sitting limitations. The standing, walking, and sitting occurs with normal breaks during an eight-hour day. She can occasionally climb stairs or ramps, but she should not be required to engage in other climbing. She should avoid exposure to environmental irritants, such as noxious gases and fumes, due to a breathing disorder. She should avoid serious workplace hazards, i.e. working around unprotected heights or dangerous machinery with moving parts. She can work in a unskilled or low semiskilled work environment.
Step four: Through the date last insured, Ms. Brenneman could not perform past relevant work as a caregiver.
Step five: Through the date last insured, as there were other jobs that existed in significant numbers in the national economy that Ms. Brenneman could perform, including ...

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