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Jones v. Berryhill

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

August 23, 2017

GARY RAY JONES, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.



         Plaintiff, 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).

         I. BACKGROUND

         In 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.[2] Tr. 1-7. Mr. Jones 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, 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).

         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).[3] 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.

         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 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. Id.


         Utilizing the five-step disability evaluation process, [4] 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.[5]
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 disabled.

Tr. 14-40.


         Mr. 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 ...

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