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White v. Berryhill

United States District Court, D. Arizona

September 6, 2019

Mark H. White, Plaintiff,
v.
Nancy Berryhill, Acting Commissioner of the Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          Honorable Jacqueline M. Rateau United States Magistrate Judge

         Plaintiff Mark H. White brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security denying his claim for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. Plaintiff presents three issues on appeal:[1] (1) whether the Administrative Law Judge (ALJ) failed to obtain a “reasonable explanation” for a conflict in the vocational expert's testimony underlying the ALJ's step-five decision; (2) whether substantial evidence supports the ALJ's finding that Plaintiff could work as a conveyor tender; and (3) whether the Court can affirm the ALJ's step-five decision based on the occupation of laundry worker. Pending before the Court is an Opening Brief filed by Plaintiff (Doc. 17), the Commissioner's Brief (Doc. 18), and Plaintiff's Reply Brief (Doc. 19). Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, remand this case for further proceedings.

         I. Background

         Plaintiff filed an application for DIB in June 2014, alleging disability since March 7, 2014. R. at 23, 194. The Social Security Administration denied Plaintiff's application for DIB initially and upon reconsideration. R. at 131, 137. Plaintiff requested a hearing before an ALJ and, in the Decision issued on August 15, 2017, the ALJ concluded that Plaintiff was not disabled within the meaning of the SSA. R. at 140, 10-23 (Decision). On May 1, 2018, the ALJ's Decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. R. at 1-3. This appeal followed.

         II. ALJ's Decision

         For purposes of Social Security benefits determinations, a disability is defined as:

The inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which 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.

20 C.F.R. § 404.1505.

         Whether a claimant is disabled is determined using a five-step evaluation process. It is claimant's burden to show (1) he has not worked since the alleged disability onset date, (2) he has a severe physical or mental impairment, and (3) the impairment meets or equals a listed impairment or (4) his residual functional capacity (“RFC”) precludes him from doing his past work. If at any step the Commissioner determines that a claimant is or is not disabled, the inquiry ends. If the claimant satisfies his burden though step four, the burden shifts to the Commissioner to show at step five that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4)(i)-(v).

         In this case, Plaintiff's claim was denied at step five of the evaluation process.

According the ALJ, Plaintiff retained the RFC to perform medium level work as defined in 20 CFR 404.1567(c)[.] he cannot use ladders, ropes or scaffolds, however; must avoid concentrated exposure to fumes, odors, dust, gases, poor ventilation or the like; is to avoid concentrated exposure to hazards, that is commonly defined as unprotected heights or dangerous machinery; cannot work in a fast-paced production environment, such that he cannot consistently work at the pace of work required in a fast-food restaurant such as McDonalds restaurant or an In-N-Out hamburger restaurant; can attend and concentrate in 2-hour blocks of time throughout an 9-hour workday with the 2 customary 10-15 minute breaks and the customary 30-60 minute lunch period.

R. at 15. Based on Plaintiff's RFC and testimony from a vocational expert, the ALJ concluded that Plaintiff could work as an automatic machine attendant, a hand packager, or a conveyor tender. R. at 22.

         III. Standard of Review

         The ALJ's decision to deny disability benefits will be vacated “only if it is not supported by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Substantial evidence is “more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). In evaluating whether the decision is supported by substantial evidence, the Court must consider the record as a whole, weighing both the evidence that supports the decision and the evidence that detracts from it. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see 42 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any fact, if supported by ...


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