United States District Court, D. Hawaii
JAMES V. JOHNS, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING DECISION OF ACTING COMMISSIONER OF
SOCIAL SECURITY AND REMANDING ACTION FOR FURTHER
J. Michael Seabright Chief United States District
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.
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.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.
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
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.
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.
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.
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
AR at 24.
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.
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.
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.
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.
STANDARD OF REVIEW
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.
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).
ANALYSIS A. Legal Standards
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
(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
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).
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
Evaluating Subjective Symptom and ...