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Joseph E. v. Berryhill

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

April 12, 2019

JOSEPH E., Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.


          Mary Alice Theiler, United States Magistrate Judge

         Plaintiff 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 Disability Insurance Benefits (DIB) 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.


         Plaintiff was born on XXXX, 1962.[1] He completed high school, two years of college, and obtained a certification as a nursing assistant. (AR 764, 779.) He previously worked as a vocational trainer, union organizer, nursing assistant, and warehouse worker. (Id. and AR 478)

         Plaintiff filed a DIB application on October 11, 2012, alleging disability beginning December 1, 2009. (AR 172.) His application was denied initially and on reconsideration. ALJ Virginia Robinson held a hearing on November 21, 2013, taking testimony from plaintiff and a vocational expert (VE). (AR 31-71.) At hearing, plaintiff amended his alleged onset date to March 4, 2011. (AR 18, 36.) On January 31, 2014, the ALJ found plaintiff not disabled. (AR 18-26.)

         Plaintiff timely appealed and the Appeals Council denied the request for review. (AR 1.) Plaintiff appealed the final decision of the Commissioner to this Court and, on March 7, 2016, the Court issued an order remanding the case for further administrative proceedings. (AR 571-90.) The Court directed that, on remand, the ALJ should reconsider the medical opinion evidence of record, particularly the opinions of Dr. Paul Lewis; take the opportunity to reconsider and fully address any evidence associated with psoriatic arthritis at step two and beyond; and reassess plaintiff's claims at all steps of the sequential evaluation process as may be warranted by further consideration of the medical evidence. (AR 589.)

         The Appeals Council vacated the final ALJ decision and remanded for further proceedings. (AR 593.) The Appeals Council noted plaintiff filed an application for Supplemental Security Income (SSI) on April 28, 2014, which was initially allowed on August 6, 2014 and plaintiff was found disabled as of the application date. Plaintiff did not receive SSI because he did not financially qualify at that time. (AR 711-25.) The Appeals Council directed the ALJ to consider evidence in the SSI application “pertinent to the current case's period-at-issue.” (AR 593.)

         The ALJ held a second hearing on September 8, 2016, taking testimony from plaintiff. (AR 491-524.) She subsequently supplemented the record with the opinions of two state agency doctors taken from the 2014 SSI case and plaintiff amended his alleged onset date a second time, to October 12, 2012. (AR 807, 810.) The ALJ issued a second decision on April 4, 2018. (AR 462-80.) She clarified that the period under consideration began as of the October 12, 2012 amended onset date and extended through December 31, 2014, plaintiff's “date last insured” (DLI) for DIB benefits. (AR 463.) The ALJ found plaintiff not disabled within that time period.

         In the second decision, the ALJ noted plaintiff filed another SSI application in August 2016. (AR 754-60.) The application was denied initially and on reconsideration and, at the time of the ALJ's April 2018 decision, plaintiff's request for a hearing was pending. (See AR 463.) While the SSI applications were not consolidated with the DIB application under consideration, the ALJ, as directed by the Appeals Council, considered evidence associated with the SSI applications. (Id.) The ALJ stated an earlier DIB application, filed in 2010 and administratively final as of January 2012, was not reopened with the October 2012 DIB application.

         Plaintiff appealed the final ALJ decision to this Court. 20 C.F.R. §§ 404.984, 416.1484.


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


         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 alleged onset date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's degenerative disc disease, frozen left shoulder, other unspecified arthropathies, and psoriatic arthritis severe. 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 perform light work, but with the following limitations: stand or walk four hours and sit six hours in an eight-hour workday, in a job with some duties performed while seated and some while standing, so that the person would be changing their position throughout the day in the normal course of their duties; never climb ladders, ropes, or scaffolds; occasionally stoop, kneel, crouch, and crawl; unlimited reaching, except occasional overhead reaching with the left upper extremity; frequent fingering; and avoid concentrated exposure to extreme cold, excessive vibration, and workplace hazards, such as dangerous machinery and unprotected heights. With that assessment, and with the assistance of the VE, the ALJ found plaintiff able to perform past relevant work as an instructor, vocational training and business representative.

         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 an assembler and basket filler.

         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 there is more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         Plaintiff argues the ALJ erred in evaluating medical opinions and in classifying his past relevant work. He requests remand for an award of benefits or, in the alternative, for further administrative proceedings. The Commissioner argues the ALJ's decision has the support of substantial evidence and should be affirmed.

         Medical ...

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