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Holly O. v. Berryhill

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

June 13, 2019

HOLLY O., 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 proceeds through counsel in her appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's applications for Disability Insurance Benefits (DIB) and 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, this matter is REMANDED for an award of benefits.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff was born on XXXX, 1970.[1] She completed high school, attended some community college, and obtained certifications for working with the developmentally disabled. (AR 133-34.) Plaintiff has past relevant work as a cashier II, home attendant, stock clerk, cashier/ salesperson, merchant patroller, and resident supervisor. (AR 46-47, 143-45.)

         Plaintiff protectively filed DIB and SSI applications on October 1, 2013, alleging disability beginning October 1, 2004. (AR 424-31.) The applications were denied initially and on reconsideration.

         ALJ Wayne Araki attempted to hold hearings in this matter on June 19, 2015 and December 15, 2015, but on each occasion postponed the hearing to allow plaintiff time to secure counsel and provided ideas on how she could find a legal representative. (AR 58-81.) In June 2015, the ALJ noted he would obtain additional medical records from providers plaintiff identified. (AR 64-65.) In December 2015, plaintiff indicated an attorney had agreed to represent her and that she had been receiving treatment from a new provider. (AR 70-75.) The ALJ advised plaintiff to tell the attorney to obtain additional records, entailing some six months of therapy notes, from the new provider (AR 76-77.) Plaintiff appeared at a third hearing on June 28, 2016 with a representative and the ALJ took testimony from plaintiff and a vocational expert (VE). (AR 82-149.) Plaintiff's representative told the ALJ she had no objections to the record with one exception and provided a June 17, 2016 letter from plaintiff's counselor, Gary Dolan. (AR 84-85.) Plaintiff also amended her alleged onset date to August 15, 2011. (AR 85.) On September 28, 2016, the ALJ issued a decision finding plaintiff not disabled. (AR 35-49.)

         Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on December 14, 2017 (AR 1-5), 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 amended alleged onset date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found the following impairments severe: affective disorder, major depressive disorder, bipolar disorder, eating and tic disorder, personality disorder, post-traumatic stress disorder (PTSD), panic disorder, obsessive-compulsive disorder, and history of substance abuse disorder. 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 a full range of work at all exertional levels, but with the following non-exertional limitations: remember, understand, and carry out instructions for tasks generally required by occupations with an SVP of 1 or 2; assigned tasks should be able to be completed without the assistance of others, but occasional assistance would be tolerated; occasional superficial interaction with the general public; occasional interaction with coworkers and supervisors; and able to adjust to work setting changes generally associated with occupations with an SVP of 1 or 2. With that assessment, the ALJ found plaintiff unable to perform her 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 cook helper, janitor, tree planter, and agricultural sorter.

         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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