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Moses v. Berryhill

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

August 3, 2018

ERIC MICHAEL MOSES, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER RE: SOCIAL SECURITY DISABILITY APPEAL

          Mary Alice Theiler, United States Magistrate Judge.

         Plaintiff Eric Michael Moses proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's application for Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, this matter is AFFIRMED.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff was born on XXXX, 1963.[1] He completed two years of college and previously worked as a general hardware salesperson, cabinet maker, carpenter, and construction superintendent. (AR 38, 56.)

         Plaintiff protectively filed for SSI in May 2014, alleging disability beginning December 30, 2003. (AR 233.) The application was denied initially and on reconsideration.

         On August 15, 2016, ALJ Gene Duncan held a hearing, taking testimony from plaintiff, a medical expert (ME), and a vocational expert (VE). (AR 34-66.) His alleged onset date was amended to the May 5, 2014 protective filing date. (AR 39.) On November 1, 2016, the ALJ issued a decision finding plaintiff not disabled. (AR 20-28.)

         Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on December 18, 2017 (AR 1), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.

         JURISDICTION

         The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         DISCUSSION

         The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since the May 5, 2014 application date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe plaintiff's degenerative disc disease of the lumbosacral spine with osteophytosis, chronic obstructive pulmonary disease (COPD), sleep apnea, and obesity. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found plaintiff's impairments did not meet or equal the criteria of a listed impairment.

         If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to lift and/or carry up to twenty pounds occasionally and ten pounds frequently, and to stand and/or walk four hours and sit six hours in an eight-hour workday. He can perform occasional postural movements, but no climbing tall ladders, working at heights or near hazards, or crawling or balancing; cannot work around moving machinery and should not be exposed to concentrated levels of pulmonary irritants or extreme hot and cold temperatures; should perform work with goals and not numerical quotas; can work independently; should have no direct access to drugs or alcohol and should not be in charge of safety of others; would be off task six percent of the day; and should not do conveyor belt work. With that assessment, the ALJ found plaintiff unable to perform past relevant work.

         If a claimant demonstrates an inability to perform past relevant work, or has no past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. With the assistance of the VE, the ALJ found plaintiff capable of performing other jobs, such as work as a cashier II, counter clerk, and ticket taker.

         This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Accord Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported by substantial evidence in the administrative record or is based on legal error.”) Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If ...


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