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Ernest M. v. Berryhill

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

April 17, 2019

ERNEST M., 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, the ALJ's decision is REVERSED and this matter is REMANDED for further administrative proceedings.


         Plaintiff was born on XXXX, 1972.[1] He has a GED, and has worked as a mold technician and greenhouse nursery worker. (AR 166.)

         Plaintiff applied for DIB in January 2015. (AR 75, 148-49.) Those applications were denied initially and upon reconsideration and Plaintiff timely requested a hearing. (AR 95-97, 99-100, 103-04.)

         On March 2, 2017, ALJ Sue Leise held a hearing in Portland, Oregon, taking testimony from Plaintiff and a vocational expert (VE). (AR 43-74.) On July 5, 2017, the ALJ issued a decision finding Plaintiff not disabled. (AR 24-35.) Plaintiff timely appealed. The Appeals Council denied Plaintiff's request for review on July 10, 2018 (AR 1-7), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.


         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 December 9, 2014, the alleged onset date. (AR 26.) At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe Plaintiff's status post bilateral foot surgery in childhood, status post recent right triple arthrodesis, pes planus, bilateral tibial tendinitis of the right and left legs, and osteoarthritis of the bilateral feet. (AR 26-27.) Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Plaintiff's impairments did not meet or equal the criteria of a listed impairment. (AR 27.)

         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 capable of performing a range of sedentary work, with the following exertional limitations: he can lift/carry up to 10 pounds occasionally and five pounds frequently, can stand or walk for two hours in an eight-hour workday, and can sit for up to eight hours in an eight-hour workday. He cannot use the lower extremities for the operation of foot controls. He can occasionally climb ramps and stairs, but cannot climb ladders, ropes, or scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. He should avoid exposure to excessive vibration and cannot work around hazards such as unprotected heights and dangerous machinery. He needs to alternate sitting and standing such that he can sit for 45 minutes to an hour and would then need to stand for five to 10 minutes and could then return to a seated position, throughout the eight-hour workday, without the need to leave the workstation aside from scheduled breaks. He would do best with tasks that do not require walking on uneven terrain. (AR 27.) With that assessment, the ALJ found Plaintiff unable to perform past relevant work. (AR 33.)

         If a claimant demonstrates an inability to perform 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 transitioning to other representative occupations, such as touchup inspector, dowel inspector, and copy examiner. (AR 34.)

         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). 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 (1) assessing the medical evidence, including certain opinions and evidence showing he meets Listing 1.02; (2) discounting his subjective symptom testimony; and (3) discounting a statement written by Plaintiff's wife. The Commissioner argues that the ...

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