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Heber v. Berryhill

United States District Court, C.D. California, Western Division

May 11, 2017

DENNIS S. HEBER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM OPINION AND ORDER

          DOUGLAS F. McCORMICK United States Magistrate Judge.

         Dennis S. Heber (“Plaintiff”) appeals from the Social Security Commissioner's final decision denying his applications for disability insurance benefits and supplemental security income. For the reasons discussed below, the Commissioner's decision is affirmed and this matter is dismissed with prejudice.

         I.

         BACKGROUND

         Plaintiff applied for supplemental security income and disability insurance benefits on December 10, 2012, alleging disability beginning on March 25, 2008. Administrative Record (“AR”) 56-58, 143-58. After his applications were denied, AR 45-89, 92-97, he requested a hearing before an Administrative Law Judge (“ALJ”), AR 98-99. A hearing was held on May 12, 2015, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert (“VE”). AR 31-44.

         In a written decision issued on May 29, 2015, the ALJ denied Plaintiff's claims. AR 14-30. The ALJ found that Plaintiff had the severe impairment of “mental retardation to borderline, ” but it did not meet or equal an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1. AR 19-20. The ALJ found that Plaintiff retained a residual functional capacity to perform a full range of work at all exertional levels, including heavy work, with the following non-exertional limitations: he could understand and remember tasks; sustain concentration and persistence; socially interact with the general public, co-workers, and supervisors; and adapt to workplace changes frequently enough to perform unskilled, low stress jobs that require simple instructions. AR 22. Based on the VE's testimony, the ALJ found that Plaintiff was unable to perform his past relevant work as a food server and warehouse worker, but he could work as a hospital cleaner, poultry hanger, and bag loader. AR 25. Therefore, the ALJ concluded that Plaintiff was not disabled. AR 26.

         Plaintiff requested review of the ALJ's decision. AR 11-13. On January 20, 2016, the Appeals Council denied review. AR 1-7. This action followed.

         II.

         DISCUSSION

         The parties dispute whether (1) the ALJ erred in concluding at step two of the sequential evaluation process that Plaintiff did not have a severe physical impairment and (2) the ALJ erred in concluding at step three that Plaintiff's impairments did not meet the requirements of a Listing. See Dkt. 20, Joint Stipulation (“JS”) at 4, 10-11, 13-17.[2]

A. ALJ's Step-Two Finding

         1. Hearing Testimony and ALJ Opinion

         At the hearing, Plaintiff testified that he had hernia surgery that “went well, but after a while it starts to get weak in the area.” AR 36-37. His ability to sit was “so-so” because his lower back started to hurt if he sat for 3 or 4 hours. AR 36. He had “not much” of an ability to lift things and experienced low-back pain near the hernia repair site when he lifted items weighing more than 50 pounds. Id. Plaintiff worked as a kitchen aide for 3 or 4 hours every day, but was “not sure” if he could do the job full time, because his back started to hurt after “too long on [his] feet.” AR 38. He could stand or walk for at least 4 out of 8 hours, and “maybe” could ...


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