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Abrego v. Commissioner Social Security Administration

United States District Court, D. Oregon

August 27, 2014


For Plaintiff: MAX RAE, Salem, Oregon; ALAN STUART GRAF, Floyd, Virginia.

For Defendant: S. AMANDA MARSHALL, United States Attorney, ADRIAN L. BROWN, Assistant United States Attorney, Portland, Oregon; LISA GOLDOFTAS, MATHEW W. PILE, Social Security Administration, Office of the General Counsel, Seattle, Washington.

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Malcolm F. Marsh, United States District Judge.

Plaintiff, Ludibina Abrego, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for disability insurance benefits

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(DIB) under Title II of the Social Security Act (the Act) and supplemental security income (SSI) disability benefits under Title XVI of the Act. See 42 U.S.C. § § 401-434, 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, I reverse the final decision of the Commissioner and remand for an immediate calculation of benefits.


Plaintiff protectively filed the instant applications for DIB and SSI on April 17, 2009, alleging disability due to chronic pain, depression, fibromyalgia, sleep apnea, narcolepsy, and hearing loss. Tr. 190. Her applications were denied initially and upon reconsideration. An Administrative Law Judge (ALJ) held a hearing on April 1, 2011, at which Plaintiff was represented by counsel and testified.

On April 12, 2011, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act and on April 30, 2013, the Appeals Council declined review of the ALJ's decision. Tr. 1-4, 19-32. On May 24, 2013, Plaintiff filed another application for DIB. On June 14, 2013, Plaintiff timely filed a Complaint in this Court seeking review of the ALJ's determination concerning the prior application. On September 17, 2013, the Commissioner approved Plaintiff's second application for DIB and found Plaintiff disabled beginning April 13, 2011 - the day after the ALJ's decision concerning the prior application.


Born on September 4, 1961, Plaintiff was 46 years old on the alleged onset date of disability and 49 years old on the date of the hearing. Tr. 221. Plaintiff has a high-school degree with some post-high school education and past relevant work as Licensing Clerk and Home Attendant. Tr. 68, 196.

Plaintiff initially alleged her conditions became disabling on March 1, 2005, but later amended her alleged onset date to September 24, 2007. Tr. 159, 190. Plaintiff testified about her conditions and functional limitations at the hearing and submitted an Adult Function Report. Tr. 42-68, 198-207. In addition, Plaintiff's sister, Veronica Abrego, submitted a Third Party Function Report. Tr. 210-17. Plaintiff's son, Joshua Hart, also submitted a letter in support of Plaintiff's application. Tr. 431-32.

The record contains multiple medical evaluations and opinions. On September 30, 2003, Leslie Pitchford, Ph.D., completed a psychological evaluation to assess Plaintiff's level of memory functioning. Tr. 518-22. On November 15, 2010, Plaintiff's treating physician Cynthia Nocek, M.D., completed a Medical Source Statement as to Plaintiff's physical and mental limitations. Tr. 836-40. On October 2, 2009, Neal E. Berner, M. D., reviewed Plaintiff's medical records and submitted a Physical Residual Functional Capacity Assessment. Tr. 727-34. On October 5, 2009, Megan D. Nicoloff, Psy.D., reviewed Plaintiff's records and submitted a Mental Residual Functional Capacity Assessment. Tr. 749-51. In addition, the record contains several statements from Anne Wild, M.D., Howard Gandler, M.D., and Scott E. Wagnon, PA-C, concerning Plaintiff's employment before the alleged onset date of disability. Tr. 708-09, 885-96.


The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); 20 C.F.R. § § 404.1520(a)(4) (i)-(v), 416.920(a)(4)(i)-(v). Each step is potentially dispositive. The claimant bears the

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burden of proof at Steps One through Four. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The burden shifts to the Commissioner at Step Five to show that a significant number of jobs exist in the national economy that the claimant can ...

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