United States District Court, D. Hawaii
ARSENE L. JACKSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING DECISION OF ACTING COMMISSIONER OF
SOCIAL SECURITY AND REMANDING CASE FOR FURTHER
Gillmor United States District Judge
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.
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).
the court REVERSES the Commissioner's decision and
REMANDS the matter for further evaluation.
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).
6, 2014, the Social Security Administration denied
Plaintiff's initial applications. (AR at pp. 87, 88).
November 17, 2014, the Administration denied his request for
reconsideration. (AR at pp. 130-32, 133-35).
the denial of Plaintiff's request for reconsideration, he
sought a hearing before an ALJ. (AR at pp. 136-137).
April 18, 2016, the ALJ conducted a hearing on
Plaintiff's applications. (AR at pp. 28-54).
18, 2016, the ALJ issued her written decision denying
Plaintiff's applications. (AR at pp. 10-26).
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).
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).
18, 2018, the Magistrate Judge issued a briefing schedule.
(ECF No. 13).
August 25, 2018, Plaintiff filed PLAINTIFF'S OPENING
BRIEF. (ECF No. 16).
October 15, 2018, the Commissioner filed DEFENDANT'S
ANSWERING BRIEF. (ECF No. 17).
October 31, 2018, Plaintiff filed PLAINTIFF'S REPLY
BRIEF. (ECF No. 19).
February 25, 2019, the Court held a hearing on
Plaintiff's appeal of the decision of the Social Security
Administration Commissioner. (ECF No. 21).
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).
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).
applied for social security benefits, with a protective
filing date of March 17, 2014,  alleging that he became disabled
beginning on May 17, 2012. AR at pp. 13, 230, 237. He was born in
1958, and was 55 years old when he applied.
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,
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. 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.
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 ...