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Key v. Berryhill

United States District Court, W.D. Washington

June 22, 2018

ALLEN KEY, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER REVERSING AND REMANDING CASE FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          JAMES P. DONOHUE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Allen Key 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 a hearing before an administrative law judge (“ALJ”). For the reasons set forth below, the Court ORDERS that the Commissioner's decision be REVERSED and REMANDED.

         I. FACTS AND PROCEDURAL HISTORY

         At the time of the administrative hearing, plaintiff was a fifty-three year old man with a high school education. Administrative Record (“AR”) at 42, 44. His past work experience includes employment as an Army mechanic and as owner of a tow truck business, where he drove tow trucks, repaired the tow trucks as well as towed vehicles, and answered the phone. AR at 46-50. Plaintiff was last gainfully employed in May 2005. AR at 49.

         On March 25, 2014, plaintiff protectively filed an application for DIB, alleging an onset date of August 22, 2008. AR at 20. Plaintiff asserts that he is disabled due to loss of balance, loss of memory, nerve damage, brain injury, vertigo, severe pain, insomnia, depression, stroke, ADD/ADHD, and TBI. AR at 255. His date last insured is December 31, 2013. AR at 20.

         The Commissioner denied plaintiffs claim initially and on reconsideration. AR at 20. Plaintiff requested a hearing, which took place on December 14, 2015. AR at 20. On May 12, 2016, the ALJ issued a decision finding plaintiff not disabled and denied benefits based on her finding that the plaintiff did not have a severe impairment. AR at 23. Plaintiffs administrative appeal of the ALJ's decision was denied by the Appeals Council, AR at 1, making the ALJ's ruling the “final decision” of the Commissioner as that term is defined by 42 U.S.C. § 405(g). On October 3, 2017, plaintiff timely filed the present action challenging the Commissioner's decision. Dkt. 4.

         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. Key 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).[1] 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 experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other work, then the claimant is found disabled and benefits may be awarded.

         V. DECISION BELOW

         On May 12, 2016, the ALJ issued a decision finding the following:

1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2013.
2. The claimant did not engaged in substantial gainful activity during the period from his alleged onset date of August 22, 2008 through the date last insured of December 31, 2013.
3. Through the date last insured, the claimant had the following medically determinable impairments: cerebrovascular accident in 2005, lumbar degenerative disc disease, kidney stones and acid reflux, cognitive disorder, tinnitus, dementia, generalized anxiety disorder, adjustment disorder with depression and anxiety, ADHD, learning disorder, chronic balance disorder, pain disorder, obstructive sleep apnea/insomnia, blindness in right eye since birth, GERD, Barrett esophagus, and hiatal hernia.
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that significantly limited the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant did not have a severe impairment or combination of impairments.
5. The claimant was not under a disability, as defined in the Social Security Act, at any time from August 22, 2008, the alleged onset date, through December ...

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