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Lesley v. Berryhill

United States District Court, D. Arizona

June 6, 2017

Kevin S. Lesley, Plaintiff,
v.
Nancy Berryhill [1], Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OF DECISION AND ORDER

          Stephen M. McNamee Senior United States District Judge

         Plaintiff Kevin S. Lesley (“Lesley”) seeks judicial review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (“Commissioner”), which denied him disability insurance benefits under the Social Security Act. (Doc. 1.)[2] Lesley appeals to this Court to review and vacate the Commissioner's denial. (Doc. 18.) The Commissioner filed her Responsive Brief (Doc. 19), and Lesley filed his Reply (Doc. 22). Lesley's appeal is now fully briefed and ready for review.

         The Court will grant Lesley's appeal, vacate the decision of the Commissioner denying Social Security Disability Benefits, and remand this matter to the Commissioner for an award of benefits.

         BACKGROUND [3]

         Kevin Lesley was born on June 30, 1961. (Tr. 64.) Lesley's employment history shows a 37-year history of successful work as an electrician. (Tr. 26-27, 174-199, 1062.) Lesley filed an application for Social Security disability insurance benefits on August 7, 2014. (Tr. 21.) In his application, Lesley alleged that he became disabled as of September 1, 2013. (Id. (otherwise referred to as “disability onset date”).) In support of his application for disability, Lesley cited Stomach Cancer, Bowel Cancer, Stage 4 Cancer, Triple Bypass Surgery, 4 Stents in Heart, and Dementia. (Tr. 226.) His application was denied initially on September 29, 2014 (Tr. 63), and upon reconsideration on January 2, 2015 (Tr. 105-07). Lesley then sought a hearing before an administrative law judge (“ALJ”).

         On June 3, 2015, the ALJ held Lesley's hearing. (Tr. 21-35.) At the hearing, Lesley testified as well as an impartial vocational expert, Gretchen A. Bakkenson. (Id.) On July 15, 2015, the ALJ determined that Lesley was disabled from September 1, 2013 through September 30, 2014. (Tr. 21.) During this period of disability, the ALJ found that Lesley had the following severe impairments: coronary artery disease, status post stenting procedure, status post non-Hodgkin's lymphoma, mild cognitive impairment, and an affective disorder. (Tr. 21, 25.) The ALJ found that Lesley had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels but with the following nonexertional limitations: he would be off task for 15% of an 8-hour workday as a result of medical treatment and doctor's visits and the side effects of medical treatment. (Tr. 26.)

         Next, the ALJ determined that as of October 1, 2014, medical improvement had occurred rendering Lesley able to perform substantial gainful activity, and thus go back to work. (Tr. 30.) According to the ALJ, Lesley could return to light work from October 1, 2014, through the date of decision, July 15, 2015. (Tr. 28-35.) This decision became the Commissioner's final decision when the Social Security Appeals Council denied review. (Tr. 1-4.)

         Subsequently, after the Commissioner's denial of disability benefits, Lesley filed a second application for disability benefits. (Doc. 22 at 1.) Based on Lesley's subsequent application, the Commissioner found Lesley disabled and eligible for benefits as of March 22, 2016. (Id.) Thus Lesley was found disabled from September 1, 2013 through September 30, 2014, and again as of and following March 22, 2016. At issue in this matter is the interim period of non-disability of approximately 18 months.

         STANDARD OF REVIEW

         When reviewing a Social Security appeal, the Commissioner's decision must be affirmed if it is supported by substantial evidence and the application of correct legal standards. See Batson v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). When reviewing the Commissioner's factual determinations, acting through the ALJ, this Court will affirm if there is substantial evidence supporting those determinations. See Celaya v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003); Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). Substantial evidence is more than a mere scintilla, but less than a preponderance. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003); Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). Substantial evidence is relevant evidence which a reasonable person might accept as adequate to support a conclusion based on the entire record. Howard, 341 F.3d at 1011; Morgan v. Commissioner of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). If the evidence can reasonably support either affirming or reversing the Commissioner's conclusion, the Court may not substitute its judgment for that of the Commissioner. See Batson, 359 F.3d at 1193; McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities. See Benton, 331 F.3d at 1040; Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). The ALJ's legal determinations are reviewed de novo, although deference is owed to a reasonable construction of the applicable statutes. See Edlund, 253 F.3d at 1156; McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000).

         COMMISSIONER'S DISABILITY EVALUATION PROCESS

         To qualify for Social Security disability benefits, Lesley must show that he suffers from a “medically determinable physical or mental impairment” that prevents him from performing his prior work activities and any other substantial gainful employment that exists in the national economy, and that the impairment “can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” See 42 U.S.C. § 423(d)(1)(A). Further, Lesley's disabled status must have existed on or before the expiration of his disability insurance, often referred to as the date last insured. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Tidwill v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998); Flaten v. Secretary of Health & Human Servs., 44 F.3d 1453, 1459 (9th Cir. 1995).

         Commissioner's Initial Disability Evaluation Social Security regulations prescribe a five-step evaluation process for an ALJ to determine if a claimant is disabled within the meaning of the Social Security Act. See Batson, 359 F.3d at 1190, 1194; 20 C.F.R. § 404.1520. At step one, the ALJ determines if the claimant is presently engaged in substantial gainful activity. See 20 C.F.R. § 404.1520(b). If the claimant is engaged in substantial gainful activity, then he is not disabled. If not, the ALJ moves to step two to determine if the claimant has impairments or combinations of impairments that significantly limit the claimant's physical or mental ability to do basic work activities and are thus “severe” within the meaning of the regulation. See id. § 404.1520(c). At the third step, the ALJ evaluates if the claimant's impairment meets or medically equals the criteria of a listed impairment found in Appendix 1 of Subpart P of Regulation No. 404. If yes, and the impairment meets the requirements for duration under 20 C.F.R. § 404.1509, the claimant is disabled. If the claimant fails to meet or equal the criteria or fails the duration requirement, the ALJ's analysis moves to step four. See 20 C.F.R. § 404.1520(e). Under step four, the ALJ determines the claimant's RFC, which is the continued ability of the claimant to perform physical or mental work activities despite his impairment or combination of impairments.[4] See id. The ALJ also determines if the claimant's RFC allows him to perform past relevant work. See id. § 404.1520(f). If yes, the claimant is not disabled. If not, the analysis proceeds to a fifth step where the burden shifts to the Commissioner to demonstrate that the claimant is not disabled by presenting evidence the claimant retains sufficient RFC to adjust to perform other jobs that exist in significant numbers either in the region where the claimant lives or in several regions of the country. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(g).

         Medical Improvement

         If “a claimant has been found disabled, he or she is entitled to a presumption that the disability still exists.” Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983) (further citation omitted). To revoke benefits, “the Commissioner bears the burden of establishing that a claimant has experienced medical improvement that would allow him to engage in substantial gainful activity.” Id. The ALJ relies on an eight-step sequential evaluation to determine whether a claimant remains disabled or has medically improved. See 20 C.F.R. § 404.1594(f)(1)-(9). The eight-step process provides: (1) if the claimant is currently engaging in substantial gainful activity, disability ends; (2) if the claimant has an impairment or combination of impairments that meets or medically equals a listing, disability continues; (3) if the claimant does not meet or equal a listing, the ALJ will determine whether “medical improvement” has occurred; (4) if medical improvement has occurred, the ALJ will determine whether the improvement is related to the claimant's ability to work; (5) if there is no medical improvement-or the medical improvement is found to be unrelated to the claimant's ability to work-disability continues; (6) if there has been medical improvement related to the claimant's ability to work, the ALJ will determine whether all of the current impairments, in combination, are “severe, ” and if not, disability ends; (7) if the claimant's impairments are considered “severe, ” the ALJ will determine the claimant's RFC, and if the claimant is able to perform past relevant work, disability ends; (8) if the claimant remains unable to perform past relevant work, the ALJ will determine whether the claimant can perform other work that exists in the national economy given his or her RFC, age, education, and past relevant work experience. See 20 C.F.R. § 404.1594(f)(1)-(8).

         DISCUSSION

         ALJ's Initial Disability Evaluation

         In this case, Lesley's last insured date was December 31, 2018. (Tr. 21.) During the initial five-step evaluation for disability, the ALJ moved through steps one, two, and three, finding that Lesley was disabled from September 1, 2013 to September 30, 2014. (Tr. 21, 24-28.) The ALJ found that “[f]rom September 1, 2013 through September 30, 2014 . . . [Lesley] had the following severe impairments: coronary artery disease, status post stenting procedure, status post non-Hodgkin's lymphoma, mild cognitive impairment and an affective disorder.” (Tr. 25.) Prior to her step four evaluation, the ALJ evaluated Lesley's RFC and found that from September 1, 2013 to September 30, 2014, he had the RFC “to perform a full range of work at all exertional levels but with the following nonexertional limitations: he would be off-task for 15% of an 8-hour workday as a result of medical treatment and doctor's visits, and the side effects of medical treatment.” (Tr. 26.) For this period, based on Lesley's RFC assessment and the vocational expert's testimony, at step four the ALJ found that Lesley could not perform his past relevant work due to his medical conditions. (Tr. 27.) For the same period, at step five and based on the vocational expert's testimony, the ALJ found that there were no jobs in the national economy that Lesley could have performed. Consequently, the ALJ found him disabled for that period of time. (Tr. 27-28.)

         ALJ's Medical Improvement Findings

         As of October 1, 2014, the ALJ found that Lesley had the same severe impairments: coronary artery disease, status post stenting procedure, status post non-Hodgkin's lymphoma, mild cognitive impairment and an affective disorder. (Tr. 28.) However, as of October 1, 2014, the ALJ further found that Lesley had medically improved. (Tr. 30.) According to the ALJ, Lesley's RFC for basic work activities had increased. (Id.) Lesley could now perform light work. (Id.) However, the ALJ also found certain work-related limitations:

no climbing ladders, ropes or scaffolds, and no more than occasional climbing ramps and stairs and balancing, stooping, crouching, kneeling and crawling. The claimant must also avoid concentrated exposure to extreme non-weather-related hot and cold temperatures, pulmonary irritants such as dust, odors, fumes and gases, poorly ventilated areas, dangerous machinery with moving and mechanical parts, and unprotected heights that are high and exposed. He is limited to tasks that can be learned by demonstration within 30 days.

(Id.) Despite all of these limitations, the Vocational Expert testified and found that Lesley could perform the jobs of housekeeper, cashier, and fast food worker. (Tr. 34.)

         Lesley's ...


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