United States District Court, D. Hawaii
ORDER REVERSING DECISION OF ACTING COMMISSIONER OF
SOCIAL SECURITY AND REMANDING FOR FURTHER ADMINISTRATIVE
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE
October 5, 2017, Plaintiff Calvin Lee Harris, Jr. appealed
the Acting Commissioner of Social Security's denial of
his application for disability insurance benefits. In his
Opening Brief, Harris asks this Court to review (1) whether
substantial evidence supported the Administrative Law
Judge's (“ALJ”) decision, and (2) the
ALJ's rejection of his testimony. After carefully
reviewing the record and the arguments of counsel in their
briefs and during oral argument, the Court concludes that
this case must be remanded for further administrative
proceedings as set forth below.
Review of Disability Claims
five-step process exists for evaluating whether a person is
disabled under the Social Security Act (SSA). 20 C.F.R.
§ 404.1520. First, the claimant must demonstrate that he
is not currently involved in any substantial, gainful
activity. Id. §§ 404.1520(a)(4)(i), (b).
Second, the claimant must show a medically severe impairment
or combination of impairments that significantly limit his
physical or mental ability to do basic work activities.
Id. §§ 404.1520(a)(4)(ii), (c). Third, if
the impairment matches or is equivalent to an established
listing under the governing regulations, the claimant is
judged conclusively disabled. Id. §§
claimant's impairment does not match or is not equivalent
to an established listing, the Commissioner makes a finding
about the claimant's residual functional capacity (RFC)
to perform work. Id. § 404.1520(e). The
evaluation then proceeds to a fourth step, which requires the
claimant to show his impairment, in light of his RFC,
prevents him from performing work he performed in the past.
Id. §§ 404.1520(a)(4)(iv), (e), (f). If
the claimant is able to perform his previous work, he is not
disabled. Id. § 404.1520(f). If the claimant
cannot perform his past work, though, the evaluation proceeds
to a fifth step. Id. § 404.1520(a)(v). At this
final step, the Commissioner must demonstrate that (1) based
upon the claimant's RFC, age, education, and work
experience, the claimant can perform other work, and (2) such
work is available in significant numbers in the national
economy. Id.; 20 C.F.R. § 404.1560(c);
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999) (explaining that, at step five, the burden moves to the
Commissioner). If the Commissioner fails to meet this burden,
the claimant is deemed disabled. 20 C.F.R. §
The ALJ's Decision
March 9, 2017, the ALJ issued a decision finding Harris
“not disabled” under the SSA. Administrative
Record (“AR”) at 26. At step one of the
evaluation process, the ALJ determined that Harris had not
engaged in substantial gainful activity from the alleged
onset date of January 31, 2008 through the date last insured
of September 30, 2013. Id. at 17. At step two, the
ALJ determined that, through September 30, 2013, Harris had
the following severe impairments: degenerative joint disease
to the left shoulder; adhesive capsulitis of the left
shoulder; a tumor of the proximal humerus and the medial
superior scapula of the left shoulder; degenerative joint
disease to the right knee; left knee strain; and degenerative
lumbar and cervical disc disease. Id. at 17-18. At
step three, the ALJ determined that, through September 30,
2013, Harris did not have an impairment or combination of
impairments that met or medically equaled the severity of one
of the impairments listed in the governing regulations.
Id. at 19.
reaching step four, the ALJ determined that Harris had the
RFC to perform “light exertional-level work, ”
except for the following limitations: (1)
minimal reaching overhead with the left arm; (2)
occasional reaching, pushing, or pulling with the
left non-dominant arm at all other planes; (3) occasional
bending, stooping, crouching, or crawling; (4) sitting for no
more than two hours at one continuous period of time before
standing or walking; and (5) standing and/or walking for no
more than two hours at one continuous period of time before
sitting. Id. at 19-23.
four, the ALJ determined that, through September 30, 2013,
Harris was unable to perform any past relevant work.
Id. at 24. At step five, the ALJ determined that,
through September 30, 2013, there were jobs that existed in
significant numbers in the national economy that Harris could
perform. Id. at 24-25. More specifically, a
vocational expert stated that, in light of Harris' RFC,
age, education, and work experience, he would be able to
perform the jobs of mail clerk, office helper, and cashier
II. Id. at 25. This final determination resulted in
the ALJ finding that Harris was not disabled under the Social
Security Act at any time from January 31, 2008 through
September 30, 2013. Id.
The Appeals Council's Decision
7, 2017, the Appeals Council granted Harris' request for
more time before acting on his case. Id. at 9. On
August 23, 2017, Dr. Eddie Soliai signed a “Physical
Medical Source Statement, ” which was submitted to the
Appeals Council for review. Id. at 2, 1033-36.
September 7, 2017, the Appeals Council denied Harris'
request for review of the ALJ's decision. Id. at
1. With respect to the “Physical Medical Source
Statement” from Dr. Soliai, the Appeals Council stated
that Harris' case had been decided through September 30,
2013, and the statement did not relate to the period at
issue. Id. at 2. The Appeals Council therefore
concluded that the statement did not affect the ALJ's
Opening Brief, Dkt. No. 22, Harris makes two principal
arguments. First, the ALJ legally erred in rejecting
Harris' testimony and doing so was contrary to the
substantial evidence in the record. Second, the ALJ's
decision was not supported by substantial evidence, including
the August 23, 2017 “Physical Medical Source
Statement” from Dr. Soliai.
must uphold an ALJ's decision “unless it is based
on legal error or is not supported by substantial
evidence.” Ryan v. Comm'r of Soc. Sec.,
528 F.3d 1194, 1198 (9th Cir. 2008). “Substantial
evidence is more than a mere scintilla but less than a
preponderance.” Id. (quotation omitted).
Stated differently, “[s]ubstantial evidence means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (quotation
omitted). “Where evidence is susceptible to more than
one rational interpretation, it is the ALJ's conclusion
that must be upheld.” Id. at 679; see also
Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d
1090, 1098 (9th Cir. 2014) (“[Courts] leave it to the
ALJ to determine credibility, resolve conflicts in the
testimony, and resolve ambiguities in the record.”)
addition, a court may not reverse an ALJ's decision on
account of an error that is harmless. Tommasetti v.
Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
“[T]he burden of showing that an error is harmful
normally falls upon the party attacking the agency's
determination.” Molina v. Astrue, 674 F.3d
1104, 1111 (9th Cir. 2012) (citation omitted). In making this
assessment, the Court “look[s] at the record as a whole
to determine whether the error alters the outcome of the
case.” Id. at 1115.
Opening Brief, Harris challenges the ALJ's rejection of
the testimony he gave before the ALJ. Specifically, Harris
challenges the ALJ's rejection of his testimony that,
during a workday, he would need to lie down and put his feet
up in order to control pain in his back. Harris asserts that
he “consistently” testified that he was ...