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Johns v. Berryhill

United States District Court, D. Hawaii

April 2, 2019

JAMES V. JOHNS, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          J. Michael Seabright Chief United States District Judge


         Plaintiff James Johns, Jr. (“Plaintiff” or “Johns”) seeks review under 42 U.S.C. § 405(g) of Acting Commissioner of Social Security Nancy A. Berryhill's (“the Commissioner”) denial of Plaintiff's application for supplemental security income benefits under Title XVI of the Social Security Act.

         The Administrative Law Judge's (“ALJ”) February 10, 2017 decision is deficient in a key area. It fails to properly “specifically identify” and discuss Plaintiff's pain and symptom testimony which the ALJ apparently rejected in finding Plaintiff not disabled. See, e.g., Treichler v. Comm'r of Soc. Sec. 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 credible and explain what evidence undermines the testimony.”) (citation and internal quotation marks omitted). Indeed, the ALJ's decision contains an apparently incomplete sentence, and thus thoughts appear to be missing where the decision starts to discuss Plaintiff's pain and symptom testimony. See Administrative Record (“AR”) at 25.[1]The decision is incomplete - and the omission means the court cannot meaningfully review the determination that Plaintiff is disabled. See, e.g., Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (explaining that the ALJ must specifically identify testimony to assure the ALJ “rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain”). For this reason, as explained in more detail to follow, the court REVERSES the ALJ's February 10, 2017 Decision and REMANDS the action to the ALJ.[2]


         Plaintiff was born in August 1987, and was 29-years old when the ALJ issued her February 10, 2017 decision. See, e.g., AR at 97. Plaintiff twice previously applied for disability and supplemental security income benefits under Titles II and XIV of the Social Security Act, alleging a disability onset date of May 1, 2005. Id. at 16. His August 2006 and May 2010 applications were denied in 2007 and 2011 respectively. Id. at 15. Although those applications were denied, some of the medical information from those prior years is relevant, and was discussed by the ALJ in the current proceeding. The parties agree, however, that the current action is limited to a July 16, 2014 application under Title XIV, seeking supplemental security income benefits beginning on that date. See Pl.'s Opening Br. at 1, ECF No. 14 at 5; Def.'s Answering Br. at 1-2, ECF No. 15 at 7-8.

         The Social Security Administration disapproved Plaintiff's July 16, 2014 application on February 12, 2015, AR at 143, and denied reconsideration on June 1, 2015, AR at 154. On July 19, 2016, an ALJ held a hearing in Hilo, Hawaii, on Plaintiff's challenge to that denial. See AR at 38 to 90. After the ALJ's February 10, 2017 decision, and after the Appeals Council denied review on February 1, 2018, Plaintiff filed this action on April 2, 2018, seeking judicial review. ECF No. 1.

         This court's decision ultimately turns on a relatively narrow issue regarding the ALJ's consideration of Plaintiff's testimony. The court thus does not set forth all the administrative record's details of Plaintiff's medical history, which dates back to at least 2005. The ALJ, however, found that Plaintiff “has the following severe impairment[s]: obesity; lumbar spine degenerative disc disease, status post left laminectomy and discectomy in February 2011; intermittent explosive disorder[;] and . . . adjustment disorder.” AR at 18.

         Specifically, the ALJ found that, “from the May 1, 2005 alleged onset date of disability through [February 10, 2017], the claimant has . . . limitations in the current four broad areas of mental functioning . . . [and that] the claimant's mental impairments are severe pursuant to [20 C.F.R. § 404.1520a and 20 C.F.R. § 416.920a].” Id. at 21. But, although diagnoses in the record reflected a substance addiction disorder, she found his drug and alcohol abuse was “not severe.” Id. As for physical impairments, she concluded that Plaintiff has “severe physical impairments as of October 2010.” Id. at 22. Based on (1) an October 5, 2010 magnetic resonance image; (2) February 2011 laminectomy and discectomy surgery; (3) August and November 2014 progress notes; and (4) May 2015 electrodiagnostic testing, she found that Plaintiff “has had a severe lumbar spine impairment through [February 10, 2017.]” Id. She also found he was clinically obese at a severe level, although his carpal tunnel syndrome was not severe. Id.[3]

         Given those classifications, the ALJ then assessed Plaintiff's residual functional capacity (“RFC”), as follows:

[Plaintiff] can lift and/or carry 20 pounds occasionally and 10 pounds frequently, he can sit 6 hours out of an 8hour day, and he can stand and/or walk 6 hours out of an 8-hour day (i.e., light exertional-level work as defined in 20 CFR 404.1567(b), 20 CFR 416.967(b), and SSR 83-10)); he can occasionally stoop, kneel, crawl, and crouch; he can occasionally climb ramps and stairs (but he can never climb ladders, ropes, or scaffolds); he can understand, remember, and carry out simple instructions (defined as unskilled Specific Vocational Preparation (“SVP”) 1 and 2 work); he can maintain attention, persistence, and pace without restriction; he can respond appropriately to co-workers and supervisors, and; he can frequently interact with the general public (20 CFR 404.1520(e); 20 CFR 416.920(e)).

AR at 24.

         Considering that RFC and other relevant factors - Plaintiff's age (“younger individual age 18-49”), education (11th grade), and work experience (no substantial gainful activity during the past 15 years), id. at 28 - the ALJ then assessed whether Plaintiff could perform jobs that exist in significant numbers in the national economy. After considering testimony of a vocational expert (“VE”), the ALJ determined that Plaintiff could perform “the requirements of representative occupations” such as a cashier, sales attendant, and a cafeteria attendant. Id. at 28-29.

         Alternatively, the ALJ considered VE testimony that found Plaintiff could perform a significant numbers of jobs even assuming Plaintiff had further limitations. Specifically, the ALJ gave the VE the following hypothetical:

[A]ssume an individual of the same age, education and vocational background as the claimant with the limitations identified [previously], with the following changes: that such an individual would need to alternate positions between sitting and standing at 45-minute intervals for one to five minutes at the workstation.

Id. at 85. The VE asked “during that one to five minutes at a time, is the person on-task or off-task?” and the ALJ clarified that “[t]hey are on-task because they're at the workstation.” Id. at 86. The VE then indicated that such a person could perform certain types of cashier jobs, or be a ticket seller or document preparer. Id. at 86-87. The ALJ accepted that opinion, and found Plaintiff is “not disabled” for purposes of the Social Security Act. Id. at 29.

         During the hearing, the ALJ had also asked the VE to assume an individual with Plaintiff's specific limitations “were off-task for five percent of the workday due to distractions from psychologically-based symptoms.” Id. at 87. The VE testified that “[a]t five percent . . . employment still could be maintained.” Id. Plaintiff's counsel then asked the VE - combining all aspects of the previous hypotheticals - whether a person would still be able to work if they “were off-task more than 20 percent of the time.” Id. The VE testified that 20 percent “would preclude employment; that's too much time off-task.” Id. at 88-89. She explained that such a limitation would preclude “all employment.” Id. at 89.

         Accepting that latter opinion by the VE, it would ultimately be dispositive if Plaintiff in fact has such a limitation (i.e., being “off-task” more than 20 percent of the time). It thus becomes important for this review whether the ALJ specifically considered (and properly rejected) Plaintiff's pain and symptom testimony as it relates to the amount of time he is “off task.” And Plaintiff contends that his pain and symptom testimony did indeed establish such a relationship, and that the court should remand for such consideration. The court's analysis focuses on that question.


         A claimant is “disabled” for purposes of 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 district court affirms a Commissioner's decision 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).

         IV. ANALYSIS A. Legal Standards

         1. Disability Determinations

         Social Security Administration regulations establish the analysis to determine when a person is “disabled” under the Social Security Act, 20 C.F.R. § 404.1520; 42 U.S.C. § 423. A familiar five-step sequential evaluation process applies:

(1) Has the claimant been engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.
(2) Has the claimant's alleged impairment been sufficiently severe to limit his ability to work? If not, the claimant is not disabled. If so, proceed to step three.
(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.
(4) Does the claimant possess the residual functional capacity to perform his past relevant work? If so, the claimant is not disabled. If not, proceed to step five.
(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow him to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

See, e.g., Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. § 404.1520).

         The claimant has the burden of proof at steps one through four; the Commissioner has the burden at step five. See, e.g., Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). At steps four and five, the ALJ may consider testimony from an impartial VE to determine whether an applicant can perform his or her past work, or to determine whether he or she can perform other jobs in the national economy. See, e.g., Wagner v. Astrue, 499 F.3d 842, 854 (8th Cir. 2007) (“[T]he ALJ may rely on the testimony of a vocational expert in making the necessary findings at step four”) (citations omitted); Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (“The [Commissioner] can meet this burden [at step five] by propounding to a vocational expert a hypothetical that reflects all the claimant's limitations.”).

         2. Evaluating Subjective Symptom and ...

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