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Lagois v. Berryhill

United States District Court, W.D. Washington

October 31, 2017

LOUIS ANTHONY LAGOIS, by and through his legal guardian, MICHAEL GROSS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          JAMES P. DONOHUE, CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Louis Anthony Lagois appeals the final decision of the Commissioner of the Social Security Administration (“Commissioner”) which denied his applications for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-33, after multiple hearings 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 a finding of disability.

         I. FACTS AND PROCEDURAL HISTORY

         Plaintiff is currently a 76-year-old man with at least four years of college education. Administrative Record (“AR”) at 145, 295. His past work experience includes employment as an Assistant Electrical Engineer for a municipal utility. AR at 36, 175.[1] Plaintiff was last gainfully employed in February 2005. AR at 290.

         Plaintiff first applied for DIB benefits on August 17, 2005, alleging an onset date of March 17, 2004. AR at 57, 145-49, 285, 1050. However, he was initially denied benefits on February 2, 2006, and did not appeal that denial. AR at 72. Plaintiff reapplied for benefits on January 21, 2007, and was denied again on March 27, 2007. AR at 81, 168-70. He appealed for reconsideration, and was denied benefits at the reconsideration level on September 25, 2007. AR at 87, 1050.

         Plaintiff requested an administrative hearing. Plaintiff's first full administrative hearing was conducted in person on February 22, 2010, in Seattle, Washington. AR at 9-42, 56-57.[2] Plaintiff alleged disability as a result of sleep apnea, urinary incontinence, arthritis of the knee, and degenerative disc disease. AR at 16-18, 24-25, 32-33, 57, 59-61. The ALJ issued an unfavorable decision on May 21, 2010, finding that plaintiff was able to return to his past relevant work as an electrical engineer “as actually performed.” AR at 60, 63. AR at 54-63. The Appeals Council denied plaintiff's request for review on July 2, 2011. AR at 1-3.

         Plaintiff appealed to the district court. AR at 1043-45. On August 8, 2012, the Honorable Brian A. Tsuchida reversed and remanded the case for further administrative proceedings. Specifically, Judge Tsuchida noted the parties' agreement that the ALJ had constructively reopened plaintiff's prior claim for benefits, as the ALJ had adjudicated the entire period at issue (March 17, 2004 through June 30, 2007). In addition, Judge Tsuchida affirmed the ALJ's adverse credibility assessment, but found that the ALJ erred by finding that plaintiff could perform his past relevant work as actually performed, because this conclusion was inconsistent with the testimony of the vocational expert (“VE”) and the evidence that plaintiff had been required to lift up to fifty (50) pounds at his job and travel to different field locations. AR at 1155. Judge Tsuchida also noted that the ALJ failed to address whether plaintiffs functionary limitations stemming from his urinary needs would have impeded his ability to perform his past job during the time period at issue. AR at 1155-56. The Court directed the ALJ to reassess whether plaintiff could perform his past relevant work at step four, and if necessary, proceed to step five. AR at 1153-61.

         Plaintiffs second full administrative hearing was held on October 16, 2013. AR at 1116-1145.[3] During the hearing, the VE testified that plaintiff had “transferable skills” from his former work as an electrical engineer, and therefore he could perform an office position called a computer-aided (“CAD”) drafter. AR at 1128-31, 1136. The VE further testified that plaintiffs skills could transfer to the specific jobs of electrical drafter and electronic drafter. AR at 1141.

         The ALJ issued an unfavorable decision on November 29, 2013. AR at 1047-60.[4]Despite the fact that the Court (and the parties) had previously determined that plaintiffs prior claim had been constructively reopened, the ALJ wrote that “upon reviewing the evidence in the current file, I do not find good cause to reopen the prior claim. As such, although the claimant alleges an onset date of disability of March 17, 2004, the period at issue begins on February 4, 2006, the day after the date of the prior determination.” AR at 1050. Thus, the ALJ considered the relevant period to be February 4, 2006 through his date last insured of June 30, 2007. AR at 1052. The ALJ then found that plaintiff had a sedentary RFC, and therefore could not return to his prior work as an “engineer technician.” AR at 1058. However, the ALJ found that plaintiff could perform other sedentary work existing in significant numbers in the national economy such as the jobs of drafter, electrical drafter, and electronics drafter. AR at 1059. Plaintiff appealed again to the district court. AR at 1384-86.

         Judge Tsuchida issued a second Report and Recommendation again reversing and remanding for further proceedings, noting the parties' agreement that the ALJ had erred by concluding there was no good cause to reopen the August 2004 claim because this issue had already been resolved on appeal to the district court. AR at 1393.[5] The parties also agreed that the ALJ had erred in considering medical opinion evidence regarding the severity of plaintiff s sleep apnea and its impact on plaintiffs ability to work during the relevant time period. AR at 1395. Judge Tsuchida found that a remand for further proceedings, rather than an award of benefits, was appropriate because the record was not yet fully developed. AR at 1395. Specifically, Judge Tsuchida noted that “the record does not establish how long [plaintiff] required the two nap per day accommodation, ” as plaintiff had received three surgeries which improved his condition. AR at 1395. As “the VE only testified regarding Mr. Lagois's employability if he took two 20 -minute naps each work day” and not whether he would be employable if he needed naps only when he was “excessively sleepy, ” the Court remanded for further development of the record regarding “when Mr. Lagios went from requiring two naps per day to requiring naps only when excessively sleepy.” AR at 1395. The Honorable Marsha J. Pechman adopted the Report and Recommendation, and directed the ALJ to fashion a complete RFC finding and “reassess steps four and five with the assistance of a vocational expert, ensuring that the vocational expert is provided a hypothetical that is consistent with the RFC ultimately found.” AR at 1389-90.[6]

         A third administrative hearing was conducted in this case on April 5, 2016. AR at 1292, 1315-1343. Plaintiff testified that during his past work an electrical project engineer, he would lift fifty pounds and climb down into a vault in the field on a regular basis. AR at 1324-25. The VE testified that his past work was best described as project engineer, under DOT code 019.167-014, a skilled occupation with a SVP of 8, classified in the light category. AR at 1328. The ALJ asked the VE to look for sedentary jobs plaintiff could perform with plaintiffs transferable skills. AR at 1330. The VE testified that following his formal transferrable skills analysis, he could not find a sedentary position that plaintiff could perform with directly transferrable skills. AR at 1332, 1335-37[7]

         On November 2, 2016, the ALJ again denied plaintiffs claim for benefits. AR at 1289-1306. The ALJ found that plaintiffs severe impairments from his alleged onset date of March 17, 2004 through his date last insured of June 30, 2007, included urinary incontinence, sleep disorder (obstructive sleep apnea), arthritis of the right knee, and degenerative disc disease of the lumbar spine. AR at 1295.[8] At step four, the ALJ found that plaintiff could perform his past relevant work as a project engineer (DOT # 019.167-014, light, SVP 8), as it was customary performed in the national economy. AR at 1305.[9] The ALJ stated that plaintiff could not perform his past job as it was actually performed, because he had to lift and carry as much as 50 pounds and therefore it was not “light” from an exertional standpoint. AR at 1305. The ALJ did not proceed to step five. AR at 1305.

         On April 5, 2017, plaintiff timely filed the present action challenging the Commissioner's decision. Dkt. 6.

         II. JURISDICTION

         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. Lagois 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).[10] 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 ...


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