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Allen v. Berryhill

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

December 5, 2017

DAVID L ALLEN, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          David W. Christel United States Magistrate Judge.

         The District Court has referred this action, filed pursuant to 42 U.S.C. § 405(g), to United States Magistrate Judge David W. Christel. Plaintiff filed this matter seeking judicial review of Defendant's denial of his application for disability insurance benefits (“DIB”).

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred at Step Four of the sequential evaluation process. Had the ALJ not erred at Step Four, the ALJ may have found Plaintiff could not perform his past work and would have continued the sequential evaluation process. Because the ultimate disability determination may have changed, the ALJ's error is not harmless, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security (“Commissioner”) for further proceedings consistent with this Order.

         FACTUAL AND PROCEDURAL HISTORY

         On October 28, 2013, Plaintiff filed an application for DIB, alleging disability as of September 1, 2007. See Dkt. 8, Administrative Record (“AR”) 17. The application was denied upon initial administrative review and on reconsideration. See AR 17. ALJ Rudolph M. Murgo held a hearing on November 16, 2015. AR 32-55. In a decision dated December 11, 2015, the ALJ determined Plaintiff to be not disabled. AR 17-25. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, making the ALJ's decision the final decision of the Commissioner. See AR 1-3; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred at Step Four by finding Plaintiff could have performed his past relevant work. Dkt. 10, pp. 3-6. Additionally, because the ALJ found Plaintiff had sufficient coverage to remain insured through December 31, 2012, the relevant inquiry is whether Plaintiff became disabled between the alleged onset date - September 1, 2007 - and the date last insured - December 31, 2012.[1] See AR 17.

         STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if 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 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

         DISCUSSION

         I. Whether the ALJ erred at Step Four of the sequential evaluation process.

         Plaintiff contends the ALJ erred at Step Four by finding Plaintiff could perform his past relevant work in a saw mill. Dkt. 10, pp. 3-6. Specifically, Plaintiff argues his past work in the saw mill may have been a “composite job” and the ALJ erred by finding Plaintiff could only perform one aspect of this job. Id.

         At Step Four of the sequential evaluation process, the claimant bears the burden of showing he can no longer perform his past relevant work. Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (citations omitted). An ALJ may use either the “actually performed” test or the “generally performed” test to determine whether a claimant can perform his past relevant work. Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (citing SSR 82-61, 1982 WL 31387 (1982)). Under the “actually performed” test, the ALJ evaluates a claimant's past relevant work by consulting a “properly completed vocational report” and “the claimant's own testimony” and assessing whether the claimant can perform his past job duties as he actually performed them. See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). By contrast, under the “generally performed” test, the ALJ consults the Dictionary of Occupational Titles (“DOT”) to determine whether the claimant can perform his past work as it is generally performed in the national economy. Stacy, 825 F.3d at 569 (citing SSR 82-61, 1982 WL 31387).

         Regardless of whether the ALJ uses the “actually performed” or “generally performed” test, the ALJ “may not classify a past occupation according to the [occupation's] least demanding function.” Id. (citation and internal quotation omitted); see also Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985) (“To classify an applicant's ‘past relevant work' according to the least demanding function of the claimant's past occupations is contrary to the letter and spirit of the Social Security Act.”).

         Furthermore, “when significant variation exists between a claimant's description of her job and the DOT description of the job, it may be the result of a composite job.” Hams v. Carolyn, 2014 WL 4168473, at *2 (W.D. Wash. Aug. 20, 2014) (citing SSR 82-61, 1982 WL 31387). A composite job contains “significant elements of two or more occupations, and as such, ha[s] no counterpart in the DOT.” SSR 82-61, 1982 WL ...


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