United States District Court, W.D. Washington, Tacoma
ORDER ON SOCIAL SECURITY DISABILITY
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
Gary Ray Jones, 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 his applications for Disability Insurance Benefits
(DIB) and Supplemental Security Income (SSI) under Title II
and Title XVI of the Social Security Act. Dkt. 3. 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 under sentence four of 42 U.S.C. § 405(g).
August 2009, Mr. Jones filed applications for DIB and SSI
alleging disability commencing on February 28, 2008. Tr. 14.
The applications were denied initially and upon
reconsideration. Id. On October 14, 2011, a hearing
was held before Administrative Law Judge (ALJ) Joanne
Dantonio. Id. ALJ Dantonio issued a decision finding
Mr. Jones not disabled. Id. The Appeals Council
granted review. By order dated June 12, 2013, the Appeals
Council vacated the decision and remanded the case for the
ALJ to further consider evidence related to Mr. Jones'
alleged right shoulder impairment and obtain additional
evidence from a vocational expert. Tr. 176-177. On March 10,
2014, a second hearing was held before ALJ Dantonio. Tr. 14.
Mr. Jones was represented by counsel, Charles W. Talbot.
Id. Joseph A. Moisan, a vocational expert (VE), also
testified at the hearing. Id. ALJ Dantonio issued a
decision on February 21, 2015, again denying Mr. Jones'
claims. Tr. 14-40. The Appeals Council denied review, and the
ALJ's decision became final. Tr. 1-7. Mr. Jones then
timely filed this judicial action.
to review the Commissioner's decision exists pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3).
STANDARD OF REVIEW
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.
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
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
claimant, Mr. Jones 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 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 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).
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). If he is, disability benefits are denied.
Id. 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. 20 C.F.R. §§ 404.1520(c),
416.920(c). If the claimant does not have such impairments,
he 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.
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 claimant is
able to perform other work, then he is not disabled; if the
opposite is true, he is disabled and benefits may be awarded.
THE ALJ'S DECISION
the five-step disability evaluation process,  the ALJ found:
Step one: Mr. Jones has not engaged in
substantial gainful activity since February 28, 2008, the
alleged onset date.
Step two: Mr. Jones has the following severe
impairments: malingering; polysubstance abuse; narcotic and
benzodiazepine seeking behavior; tobacco addiction; chronic
hamstring rupture; cervical degenerative disc disease;
thoracic disc bulge; chronic obstructive pulmonary disease
(COPD) with emphysema; peripheral polyneuropathy; bilateral
ulnar nerve neuropathy; and right knee osteoarthritis, status
post total right knee arthroplasty.
Step three: These impairments do not meet or
equal the requirements of a listed impairment.
Residual Functional Capacity: Mr. Jones can
perform medium work. He can lift and/or carry 50 pounds
occasionally and 25 pounds frequently in an eight-hour
workday. He can stand and/or walk for six hours and sit for
six hours in an eight-hour workday. He can occasionally climb
ladders, ropes or scaffolds. He can occasionally crawl.
Step four: Mr. Jones can perform past
relevant work as a dump truck driver and, as such, is not
ISSUES ON APPEAL
Jones argues the ALJ erred in: (1) failing to follow the
directive of the Appeals Council on remand; (2) accepting a
diagnosis of malingering from a treatment provider who is not
an acceptable source; (3) evaluating the lay witness
statements; (4) failing to discuss relevant medical records
related to his COPD; (5) failing to properly evaluate his
stroke as a severe impairment at step two; (6) evaluating the
medical opinions of treating and examining doctors. Dkt. 10
at 1-2. As relief, Mr. Jones contends this matter should be
reversed and remanded for a new hearing. Id. As
discussed below, the ...