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Smithingell v. Berryhill

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

June 6, 2017

LYLE G. SMITHINGELL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER RE: SOCIAL SECURITY DISABILITY APPEAL

          Mary Alice Theiler United States Magistrate Judge.

         Plaintiff Lyle Smithingell proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, this matter is REMANDED for further administrative proceedings.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff was born on XXXX, 1962.[1] He has a high school degree and a carpenter's certificate, and previously worked as a carpenter. (AR 25, 39.)

         Plaintiff filed DIB and SSI applications in June 2013, alleging disability beginning September 20, 1996. (AR 206, 208.) Plaintiff remained insured for DIB through December 31, 2008 and was required to establish disability on or prior to that “date last insured” (DLI). See 20 C.F.R. §§ 404.131, 404.321. His applications were denied initially and on reconsideration.

         On February 5, 2015, ALJ Cynthia Rosa held a hearing, taking testimony from plaintiff and a vocational expert (VE). (AR 33-65.) At hearing, plaintiff amended his alleged onset date to December 31, 2007. (AR 37.) On May 20, 2015, the ALJ issued a decision finding plaintiff not disabled. (AR 14-27.)

         Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on September 27, 2016 (AR 1-5), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.

         JURISDICTION

         The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         DISCUSSION

         The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since the alleged onset date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's status post three surgeries for right scapholunate ligament tear severe. She found other impairments, including major depressive disorder and anxiety disorder (not otherwise specified (NOS)), nonsevere. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found the impairments did not meet or equal the criteria of a listing.

         If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to perform light work and able to lift/carry five pounds occasionally and frequently with right upper extremity, but with no exertional limitations in lifting/carrying with left upper extremity; able to perform work that does not require crawling or climbing ladders, ropes, or scaffolds; can do occasional handling and fingering with right upper extremity; claimant is right hand dominant and able to perform work that does not require using hand controls with right upper extremity; and able to perform work that allows him to avoid concentrated exposure to vibrations and hazards. With that assessment, the ALJ found plaintiff unable to perform his past relevant work.

         If a claimant demonstrates an inability to perform past relevant work, or has no past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. With the assistance of the VE, the ALJ found plaintiff capable of performing other jobs, such as work as a cashier II, furniture rental consultant, and information clerk.

         This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Accord Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported by substantial evidence in the administrative record or is based on legal error.”) Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If ...


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