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Feese v. Berryhill

United States District Court, E.D. California

March 30, 2018

JOHN FEESE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.




         Plaintiff, John Feese (“Plaintiff”), seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for Disability Insurance Benefits (“DIB”) pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs which were submitted without oral argument to the Honorable Gary S. Austin, United States Magistrate Judge.[2] (See, Docs. 10 and 13). Upon a review of the entire record, the Court finds that the ALJ's decision is not supported by substantial evidence. Accordingly, the Court GRANTS Plaintiff's appeal IN PART, and remands the case for further proceedings.


         A. Background

         Plaintiff previously worked as a truck driver, casino manager, paramedic, and police officer. AR 19. He filed an application for DIB under Title II of the Act on January 17, 2013, alleging an onset of disability beginning August 8, 2011, due to cervical fusion at ¶ 2-C3, total lumbar injury, and diabetes. AR 11;63;87. The agency denied Plaintiff's application initially and on reconsideration. AR 11;111-115;118-122. On July 8, 2015, after holding administrative hearings on December 9, 2014 and May 12, 2015 (AR 26-85), Administrative Law Judge (“ALJ”) G. Ross Wheatley issued a decision denying the application. AR 11-20. The Appeals Council upheld that decision on December 16, 2015 (AR 1-6), making that decision the final decision of the Commissioner. Plaintiff sought judicial review by commencing the instant action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).

         B. Summary of the Medical Record

         The Court has reviewed the entire medical record. AR 277-1624. Because the parties are familiar with Plaintiff's medical history, the Court will not exhaustively summarize these facts in this order. Relevant portions of the medical record related to Plaintiff's impairments and treatment will be referenced in this decision where appropriate.

         C. Plaintiff's Testimony

         On December 9, 2014, Plaintiff testified at a hearing before the ALJ. He testified that after receiving his GED, he completed two programs at Merced College and Modesto City College to become an emergency medical technician and for peace officer training. AR 61-62. Plaintiff filed for unemployment in 2012 and 2013. AR 64-65. Plaintiff reported that his back and neck were his primary impairments although he also suffers from a left rotator cuff tear. AR 66-67. He reported that all five of his lumbar discs were, “messed up, ” causing his foot to swell up and to drop. AR 68. Doctors have told him surgery is not an option to correct his back pain because of the way his nerves are bundled in his lower back. AR 68-69. He has done physical therapy in the past but the only thing that really works well is traction that he does at home. AR 69.

         Plaintiff also suffers from pain in his neck. AR 65. He already had one neck fusion surgery, but two more surgeries are required because his neck pain is getting worse which prevents him from moving his head up or around. AR 65-66. He takes Baclofen for pain which provides some relief for a few hours but does not help increase mobility in his neck. AR 71. He also receives shots in his neck every three months which helps the pain a lot, but they only provide relief for the first month. AR 72-73. He is also diabetic and takes insulin daily. AR 72.

         With regard to daily activities, he can dress and groom himself and cook meals for the family. AR 77-79. He also does some vacuuming. AR 79. Plaintiff uses a cane outside of the house to walk longer distances on uneven surfaces. AR 77. He has five children. AR 70-71. His oldest son in nineteen and is in the Navy. AR 79. He has four other children who live at home with him and his wife, including an eleven year old, a nine year old, and twins who are four. AR 78-80. His oldest son's girlfriend who is sixteen also lives with them. AR 79. He is the primary caregiver for the children during the day because his wife works. AR 78-80. He drives his older children to and from school and occasionally drives them to doctors' appointments. AR 80-81. He can walk from the park to school. AR 74. He has driven to Fremont to visit family in the past year, which takes about an hour and fifteen minutes. AR 81-82. In-city driving is more difficult because he has to move his neck which causes him pain. AR 81-82. He likes to read Clive Custler's novels and goes grocery shopping with his wife. AR 83.

         Plaintiff testified at a supplemental hearing before the same ALJ on May 12, 2015. AR 28-54. Plaintiff alleged increased symptoms since the last hearing, including more neck pain and decreased mobility due to a disc herniation in his neck, urinary control problems, and back spasms. AR 31-34. He takes Motrin and Baclofen to address his pain, however, he does not take stronger narcotic medications because the drugs make him fall asleep and he has to care for his children. They also give him nightmares. AR 26; 36. He has difficulty staying asleep due to pain, incontinence, and frequent urination. AR 33; 42-43. He goes to the grocery store once every two weeks and he can lift and transfer a bag of groceries from the cart to his car. AR 35-36. When grocery shopping, he shops for about forty-five minutes but leans on the cart during that time. AR 44. He drove forty minutes to the hearing and drives his kids a mile to school. AR 41-42. He also experiences depression, anxiety, and anger in response to his poor physical condition and associated frustrations with his family. AR 37. He goes to counseling with his wife and also takes his ten year old son to therapy to address his son's anger issues. AR 39-40. He does not take any medication to address his own psychological symptoms. AR 39.


         To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

. . . his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. § 1382c(a)(3)(B).

         To achieve uniformity in the decision-making process, the Commissioner has established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. § 404.1520(a).[4] The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. § 404.1520(a)(4). The ALJ must consider objective medical evidence and opinion testimony. 20 C.F.R. § 404.1513.

         Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial gainful activity during the period of alleged disability; (2) whether the claimant had medically-determinable “severe” impairments; (3) whether these impairments meet or are medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) whether the claimant retained the residual functional capacity (“RFC”) to perform his past relevant work; and (5) whether the claimant had the ability to perform other jobs existing in significant numbers at the regional and national level. 20 C.F.R. § 404.1520(a)(4).


         Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff was insured through December 31, 2016, and that Plaintiff had not engaged in substantial gainful activity since August 8, 2011, the alleged disability date. AR 13. The ALJ identified cervical degenerative disc disease, diabetes, chronic lumbar spine degenerative disc disease, left rotator cuff tendinitis, obesity, depression, and anxiety as severe impairments. AR 13. However, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listing impairments in 20 C.F.R. Part 404 P, Appendix 1. AR 13-15. As part of his analysis, the ALJ found that Plaintiff's statements regarding the intensity, persistence, and limiting effects of his alleged symptoms were not entirely credible. AR 13-19.

         The ALJ also determined that Plaintiff had the RFC to perform a restricted range of light work as defined in 20 CFR § 404.1567(b). Specifically, he found Plaintiff could lift and carry up to twenty pounds occasionally and ten pounds frequently; sit, stand, and walk for six hours in an eight hour workday with the use of a cane for long and uneven terrain; frequently push and pull with the upper left extremity; occasionally climb, balance, and stoop; frequently reach and handle bilaterally; occasionally reach overhead bilaterally; no crouching, crawling, or kneeling; must avoid all exposure to extreme cold and heat; must avoid concentrated exposure to wetness, humidity, and excessive noise; is limited to simple, ...

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