Ken M. ex rel. Berry M. v. Berryhill

340 F. Supp. 3d 1070
CourtDistrict Court, W.D. Washington
DecidedOctober 31, 2018
DocketCASE NO. C18-5146-MAT
StatusPublished
Cited by1 cases

This text of 340 F. Supp. 3d 1070 (Ken M. ex rel. Berry M. v. Berryhill) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ken M. ex rel. Berry M. v. Berryhill, 340 F. Supp. 3d 1070 (W.D. Wash. 2018).

Opinion

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 applications1 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 of record, this matter is REMANDED for an award of benefits.

FACTS AND PROCEDURAL HISTORY

Plaintiff was born on XXXX, 1969.2 He completed high school, attending special *1073education classes and requiring an additional year to graduate. (AR 38-39, 42-24.) Plaintiff was last gainfully employed, in December 1997, as a baker helper. (AR 39-40, 228, 1430.)

Plaintiff protectively filed a DIB application on May 18, 2009 and an SSI application on June 5, 2009, alleging disability beginning June 1, 1997. (See AR 204, 1418.)3 He remained insured for DIB through December 31, 2002 and was therefore required to establish disability on or prior to that "date last insured" (DLI) in order to receive DIB. See 20 C.F.R. §§ 404.131, 404.321. Plaintiff's applications were denied at the initial level and on reconsideration.

On January 21, 2011, ALJ Gordon Griggs held a hearing, taking testimony from plaintiff, his brother, and a vocational expert (VE). (AR 31-79.) Plaintiff passed away on April 3, 2011 (AR 183) and his brother was deemed an appropriate substituted party (see AR 1418). In a June 14, 2011 decision, the ALJ found plaintiff not disabled prior to June 5, 2009, but disabled as of that date and through his death. (AR 15-24.) He found plaintiff not under a disability or entitled to DIB at any time through the DLI. While plaintiff established his entitlement to SSI, there was no one eligible to receive those benefits.

The Appeals Council denied plaintiff's request for review on March 8, 2012 ( AR 1 - 5 ) and plaintiff filed a civil action in this Court. On November 14, 2012, the parties stipulated to a remand for further proceedings. (AR 1216-17.) The Appeals Council vacated the decision and remanded, directing the ALJ to re-evaluate the medical and lay opinions regarding onset of disability and to obtain the assistance of a medical expert in determining that date. (AR 1228-29.)

On November 8, 2013, ALJ Gary Elliott held a hearing, taking testimony from claimant's brother, a VE, and psychological expert Dr. Arthur Lewy. (AR 1143-81.) In a decision dated December 3, 2013, the ALJ again found plaintiff not disabled prior to June 5, 2009, but disabled as of that date, and not disabled at any time through the DLI. (AR 1113-27.)

The Appeals Council denied plaintiff's request for review (AR 1104-07) and plaintiff again filed a civil action. By Order dated October 26, 2015, the Court remanded for further proceedings to address whether plaintiff met the requirements of listing 12.05C in the Listing of Impairments in Appendix 1 to Subpart P of the regulations. (AR 1570-77.) On February 8, 2016, the Appeals Council vacated the decision and remanded for further proceedings consistent with the Court's Order. (AR 1581.) It affirmed the ALJ's finding of disability beginning June 5, 2009 and directed the ALJ to issue a new decision on the issue of disability prior to that date.

ALJ Gene Duncan held a hearing on October 24, 2016, taking testimony from claimant's brother, a VE, and medical expert Dr. James Todd. (AR 1457-1535.) On February 15, 2017, the ALJ issued a decision finding plaintiff was not under a disability, and therefore not entitled to DIB, from the June 1, 1997 application date through June 5, 2009. (AR 1418-32.)

Plaintiff submitted exceptions to the ALJ's decision and, on December 29, 2017, the Appeals Council found no reason to assume jurisdiction. (AR 1408-13.) Plaintiff appealed the final ALJ decision to this Court.

*1074JURISDICTION

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 after the June 1, 1997 alleged onset date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's obesity and learning disorder 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 a full range of work at all exertional levels, with simple, repetitive tasks, basic vocabulary instructions, and hands-on training for work setting changes. With that assessment, the ALJ found plaintiff able to perform his past work as a baker helper prior to June 5, 2009.

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 also found plaintiff capable of performing other jobs, such as work as an 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.

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Bluebook (online)
340 F. Supp. 3d 1070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ken-m-ex-rel-berry-m-v-berryhill-wawd-2018.