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Washington v. Berryhill

United States District Court, C.D. California

March 9, 2017

BRIAN KEITH WASHINGTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Plaintiff filed a Complaint on April 6, 2016, seeking review of the denial of his application for Title XVI supplemental security income benefits (“SSI”). On February 1, 2017, the parties filed a document entitled “Joint Submission” (also referred to as a “Joint Stip.”), in which plaintiff seeks an order reversing the Commissioner's decision and awarding benefits. (See Joint Stip. at 20.) The Commissioner requests that the decision be affirmed or, in the alternative, that the case be remanded for further administrative proceedings. (Joint Stip. at 21.) By May 13, 2016, all parties had consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. (See Dkt. Nos. 10, 11, 12.) The Court has taken the matter under submission without oral argument.

         SUMMARY OF ADMINISTRATIVE PROCEEDINGS

         On May 9, 2012, plaintiff filed an application for SSI benefits, alleging a disability onset date of October 6, 2011. (See Administrative Record (“AR”) 170-80.) Plaintiff was born on October 28, 1973, and was 38 years old at the time he filed his SSI application, and 40 years old when he had a hearing before an Administrative Law Judge (“ALJ”).[1] (See AR 29, 40, 170.) Plaintiff had been incarcerated most of his adult life, most recently from May 2010 until he was paroled on April 27, 2012, and he had no past relevant work (“PRW”). (See AR 29, 41-42.)

         The Commissioner denied the claim in an initial determination on July 26, 2012. (AR 93-96.) Plaintiff retained an attorney to represent him in August 2012 (see AR 99), but that attorney withdrew from representation in March 2013. (See AR 125.) On September 18, 2012, plaintiff requested reconsideration of the initial denial. (AR 100-01.) On May 3, 2013, the Commissioner denied reconsideration. (AR 102-07.) On June 27, 2013, Plaintiff requested a hearing before an ALJ. (AR 108-10.)

         On May 6, 2014, ALJ Elizabeth R. Lishner conducted a hearing. (AR 34-67.) Plaintiff appeared at the hearing without a representative. (See AR 36.) Plaintiff acknowledged that he formerly had an attorney, but he said that “she wasn't doing her job” and was no longer representing him, and plaintiff said that he was “waiving [his] right to representation at this time.” (See AR 36-39.) The ALJ's opinion noted that “[a]lthough informed of the right to representation, the claimant chose to appear and testify without the assistance of any attorney or other representative.” (AR 20.)

         Plaintiff testified that he had graduated from high school. (AR 42.) He had last worked on October 6, 2011 (and that work was apparently in prison). (AR 41; see also AR 22, 24.) Plaintiff alleged that he was injured on October 6, 2011, moving a boulder while on a prison work crew, and he stated that he still had a Workers' Compensation claim pending from that injury at the time of the hearing on May 6, 2014. (AR 41.) Plaintiff testified that “with this . . . Worker's Comp [case], they, basically on my file [sic], I'm totally disabled, stationary . . . [a]nd with it being on my file, when they [sic] pull me up, who's going to hire me?” (AR 43.)

         Plaintiff testified that he could not do jobs that he formerly did in prison, like landscaping and painting, but he said “I don't have a problem” with doing a job sitting down, although he said that “I have a problem sitting over 15 minutes” because “I get spasms in my back” which then require him to get up and walk around for 10 or 15 minutes. (See AR 41-44.) Plaintiff testified that, during the day when he is home, he does “[b]asically nothing, ” and he said that he can't play with his wife or four children “because of my issues.” (AR 44.) Plaintiff testified that he can't put his shoes on and needs help putting them on, and he uses a cane “all the time.” (AR 45.) Plaintiff testified that he has no income, and “the permanent disability that they [i.e., Workers' Comp] were paying me stopped until they settle the case or until I . . . accept the offer.” (AR 45.) The ALJ noted, and plaintiff confirmed, that his Workers' Comp benefits had ceased “in June of last year” (presumably 2013). (AR 65-66.) Plaintiff testified that he has an attorney representing him with his Workers' Comp claim, and Workers' Comp had offered him a settlement, but he had not accepted it because “there's no future medical.” (AR 64-65.)

         Plaintiff testified that he is currently going to “Healthpoint” for therapy following a car accident that occurred in November 2013. (See AR 46-47; see also AR 57-58, 60-61.) Plaintiff also complained that he has “hammer toes, ” and “a broke toe that will never healed [sic].” (AR 50.)

         A vocational expert (“VE”), Dr. Gail L. Maron, appeared and testified at the hearing. (See AR 20, 50-53.) The VE confirmed that plaintiff had no past work. (AR 50.) The VE opined that, based on a hypothetical RFC that included six hours of sitting and two hours of standing a day, the plaintiff could perform sedentary jobs such as “microfilm document preparer, ” DOT[2] 249.587-018, “addresser, ” DOT 209.587-018, or “food and beverage order clerk, ” DOT 209.567-014. (AR 50-51.) The VE opined, however, that if plaintiff was required to stand and walk around two times an hour for five minutes each time, plaintiff could not perform sedentary work and there would be no occupations in the national economy that plaintiff could perform. (AR 52.)

         After the VE testified, plaintiff's wife, Lameka Washington, also testified at the hearing. (See AR 54 et seq.) Ms. Washington testified that plaintiff spends his time in bed, and doesn't do “much of anything” because “he has back spasms majority of all day.” (AR 55.) Ms. Washington said that she does “everything else; the housework, the shopping, everything for him.” (AR 55.) Plaintiff's wife said that he can “arm reach, ” but he can't reach “[a]nything over his head or anything else.” (AR 55-56.) She testified that, although her husband takes medications, and has experimented with different medications and dosages, “[t]here's nothing works.” (AR 56.) Ms. Washington testified that plaintiff goes for medical treatment “three to four times a week, ” and she said “[h]e's at the doctor the majority of all week.” (AR 57.)

         On July 24, 2014, the ALJ issued an unfavorable opinion, denying plaintiff's request for SSI benefits. (AR 17-33.) On September 16, 2014, plaintiff requested review by the Appeals Council. (See AR 11-16.) The Appeals Council denied review on the same date, making the ALJ's decision the final decision of the Commissioner pursuant to 42 U.S.C. § 405(h). (AR 5-10.) This timely appeal followed.

         SUMMARY OF ADMINISTRATIVE DECISION

         Applying the five-step sequential evaluation process, at step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since May 9, 2012, the application date. (AR 22.)

         At step two, the ALJ found that plaintiff had four severe impairments: lumbosacral degenerative disc disease, status-post left knee surgery, obesity, and bilateral hallux valgus (commonly referred to as “bunions”). (Id.) The ALJ further noted that plaintiff's physical impairments “preclude him from heavy lifting/carrying and prolonged standing/walking.” (Id.)

         At step three, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meet or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Id.) Before proceeding to step four, the ALJ concluded that plaintiff has the residual functional capacity (“RFC”) to perform light work,

except he is limited to standing/walking for two hours out of an eight-hour work day but not continuously, sit for six hours out of an eight-hour workday and perform only occasional postural activities such as bending, ...

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