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Jackson v. Berryhill

United States District Court, D. Hawaii

March 18, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Helen Gillmor United States District Judge


         Plaintiff Arsene L. Jackson (“Plaintiff” or “Jackson”) seeks review under 42 U.S.C. § 405(g) of the Acting Social Security Commissioner's (“the Commissioner”) denial of Jackson's application for disability insurance and supplemental security income benefits under Titles II and XVI of the Social Security Act.

         An Administrative Law Judge (“ALJ”) determined that Plaintiff was not disabled, finding he could perform his past work as a security guard. But in so doing, the ALJ did not - as the law requires - “specifically identify the testimony” that she found not credible. The ALJ did not reference Plaintiff's potentially dispositive testimony about his need to take frequent unscheduled breaks due to pain that interfered with his ability to satisfy job requirements. See, e.g., Treichler v. Comm'r of Soc. Security Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (“[W]e require the ALJ to ‘specifically identify the testimony from a claimant she or he finds not to be credible and explain what evidence undermines the testimony.'”) (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (internal editorial marks omitted)). This requirement “ensure[s] [the court's] appellate review is meaningful.” Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991)). Without the ALJ identifying such testimony, the court is unable to conclude, as would be necessary to affirm the Commissioner's decision, that the ALJ “rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell, 947 F.2d at 345-46).

         Accordingly, the court REVERSES the Commissioner's decision and REMANDS the matter for further evaluation.


         On March 24, 2014, Plaintiff filed applications for disability insurance and supplemental security income benefits. (Administrative Record (“AR”) at pp. 230-36, 237-45, ECF No. 15).

         On May 6, 2014, the Social Security Administration denied Plaintiff's initial applications. (AR at pp. 87, 88).

         On November 17, 2014, the Administration denied his request for reconsideration. (AR at pp. 130-32, 133-35).

         Following the denial of Plaintiff's request for reconsideration, he sought a hearing before an ALJ. (AR at pp. 136-137).

         On April 18, 2016, the ALJ conducted a hearing on Plaintiff's applications. (AR at pp. 28-54).

         On July 18, 2016, the ALJ issued her written decision denying Plaintiff's applications. (AR at pp. 10-26).

         Plaintiff sought review by the Appeals Council for the Administration. The Appeals Council denied further review on January 24, 2018, rendering the ALJ's decision as the final administrative decision by the Commissioner. (AR at pp. 1-7).

         On March 26, 2018, Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) of the Commissioner's final decision denying benefits. (Complaint for Review of Social Security Disability Insurance Determination, ECF No. 1).

         On June 18, 2018, the Magistrate Judge issued a briefing schedule. (ECF No. 13).

         On August 25, 2018, Plaintiff filed PLAINTIFF'S OPENING BRIEF. (ECF No. 16).

         On October 15, 2018, the Commissioner filed DEFENDANT'S ANSWERING BRIEF. (ECF No. 17).

         On October 31, 2018, Plaintiff filed PLAINTIFF'S REPLY BRIEF. (ECF No. 19).

         On February 25, 2019, the Court held a hearing on Plaintiff's appeal of the decision of the Social Security Administration Commissioner. (ECF No. 21).


         A claimant is disabled under the Social Security Act if he or she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see 42 U.S.C. § 1382c(a)(3)(A); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         A decision by the Commissioner must be affirmed by the District Court if it is based on proper legal standards and the findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993).


         Plaintiff applied for social security benefits, with a protective filing date of March 17, 2014, [1] alleging that he became disabled beginning on May 17, 2012.[2] AR at pp. 13, 230, 237. He was born in 1958, and was 55 years old when he applied.

         After separating from the Army in 1983, AR at p. 528, Plaintiff reported working in floor maintenance at an airport from 1989 to 1998, and as a security guard from 2001 to 2008. AR at pp. 297. He last worked from April 2011 until May or June of 2012 doing cleaning at the Aulani resort and Ala Moana shopping center. Id. at pp. 34, 297. He was homeless when he applied for benefits, and reported that at night he often sleeps on the beach in Waianae, although he would sometimes sleep in the garage of his ex-wife's family in Makaha. AR at pp. 39, 660. He would bathe and cook at a friend's house. AR at pp. 39. He has had alcohol and drug abuse problems, and was receiving assistance from the Department of Veteran's Affairs (“VA”) with his health and homeless issues. See, e.g., AR at pp. 50, 661, 708-09, 795.

         The ALJ found, and the Commissioner does not dispute, that (1) Plaintiff met insured status requirements of the Social Security Act through December 31, 2015; (2) he has not engaged in substantial gainful activity since May 17, 2012; (3) he “has the following severe impairments: spine disorder, arthritis, dysfunction of major joints (left shoulder), and sciatica in his right leg;” and (4) the impairments “significantly limit [his] ability to do basic work activities.” AR at p. 15.[3] The ALJ concluded, however, that Plaintiff has the residual functional capacity to perform light work (his past job as a security guard) and thus is not “disabled” for purposes of receiving social security benefits. AR at pp. 15-16, 20.

         The ALJ's decision gave the following description of Plaintiff's testimony about leaving his last job in 2012:

During the hearing, the claimant stated that he had been restricted to light duty at his work but that they could not accommodate a light duty restriction. As a result, the claimant lost his job. . . . The claimant testified that he ceased working because no light duty jobs ...

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