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Harris v. Berryhill

United States District Court, D. Hawaii

November 19, 2018

CALVIN LEE HARRIS, JR., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING DECISION OF ACTING COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE

         On 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.

         BACKGROUND

         I. Review of Disability Claims

         A 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. §§ 404.1520(a)(4)(iii), (d).

         If the 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. § 404.1520(g)(1).

         II. The ALJ's Decision

         On 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.

         Before reaching step four, the ALJ determined that Harris had the RFC to perform “light exertional-level work, ” except for the following limitations: (1) minimal[1] reaching overhead with the left arm; (2) occasional[2] 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.

         At step 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.

         III. The Appeals Council's Decision

         On July 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.

         On 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 decision. Id.

         IV. This Action

         In his 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.

         STANDARD OF REVIEW

         A court 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.”) (citations omitted).

         In 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.

         DISCUSSION

         I. Harris' Testimony

         In his 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 ...


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