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Sandberg v. Commissioner of Social Security Administration

United States District Court, D. Oregon, Portland Division

May 22, 2015



JANICE M. STEWART, Magistrate Judge.


Plaintiff, Allison Kay Sandberg ("Sandberg"), seeks judicial review of the final decision by the Social Security Commissioner ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("SSA"), 42 USC §§ 401-33. This court has jurisdiction to review the Commissioner's decision pursuant to 42 USC § 405(g) and § 1383(c)(3). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c) (docket #18). For the reasons set forth below, that decision is REVERSED and REMANDED for an award of benefits.


Sandberg protectively filed for DIB on June 24, 2010, alleging a disability onset date of May 13, 2010. Tr. 177-78.[1] Her application was denied initially and on reconsideration. Tr. 81-118. On October 16, 2012, a hearing was held before Administrative Law Judge ("ALJ") Rudolph M. Murgo. Tr. 26-80. The ALJ issued a decision on November 1, 2012, finding Sandberg not disabled. Tr. 6-21. The Appeals Council denied a request for review on March 19, 2014. Tr. 1-3. Therefore, the ALJ's decision is the Commissioner's final decision subject to review by this court. 20 CFR §§ 404.981, 422.210.


Born in 1974, Sandberg was 38 years old at the time of the hearing before the ALJ. Tr. 81. She graduated from high school, completed three years of college, and has past relevant work experience as a developmental disability aide and sales clerk. Tr. 30, 33, 66, 199-200. Sandberg alleges that she is unable to work due to the combined impairments of bipolar disorder, generalized anxiety disorder, panic disorder, social phobia, insomnia, and chronic ankle pain. Tr. 198.


Sandberg was diagnosed with bipolar disorder in 1997 when in college. Tr. 60, 563, 868. On May 12, 2010, shortly before the relevant time period, Sandberg received a psychiatric evaluation from Pam Moore, PMHNP at the Family Institute, P.C. Tr. 562-75. Ms. Moore assessed Sandberg as exhibiting poor coping skills, being anxious, and suffering from both manic and depressive symptomology. Tr. 564. At the time, Sandberg was involved in group therapy through her church. Tr. 566. Ms. Moore diagnosed Sandberg with Bipolar I Disorder as predominantly manic and General Anxiety Disorder with mild agoraphobia. Id.

On May 14, 2010, Sandberg fell at work and hurt her left ankle. Tr. 503, 507. She was diagnosed with a sprain in the emergency room. Tr. 260. On May 28, 2010, based on a MRI and X-ray revealing a small avulsion fracture (strain), Jay L. Cary, M.D., prescribed a boot and stated that she could return to sedentary work. Tr. 503.

On July 28, 2010, Sandberg reported to Ms. Moore that her social phobia had faded and she was "getting out" more often. Tr. 575. Ms. Moore attributed this improvement to stopping the stress of work and starting thyroid treatment and vitamin therapy. Tr. 577. At that time, Sandberg was taking Lithium, Tegretol, and Depakote for her mental health symptoms. Id.

Due to chronic pain in her right ankle, Sandberg had an arthroscopic debridement on May 14, 2009 (Tr. 449-50), followed by a gastrocnemius slide on February 16, 2011. Tr. 472-73, 619-20. On April 25, 2011, Sandberg fell and injured her left ankle again. Tr. 750. An X-ray at the emergency room revealed a non-displaced fracture. Id. In June and July 2011, she underwent physical therapy for her left ankle. Tr. 699-729. From November 15 to December 9, 2011, she attended seven physical therapy sessions for her right ankle. Tr. 659-77.

On May 26, 2012, Sandberg initiated care with Deidre Berens, PMHNP-BC, for her mental health issues. Tr. 868. Ms. Berens diagnosed her with Bipolar Disorder, Generalized Anxiety Disorder, and "ADHD, predominantly inattentive type." Tr. 871. In a letter dated July 18, 2012, Ms. Berens stated that, "[g]iven the ongoing and episodic nature of the symptoms of Bipolar I, coupled with the unfortunate side effects incumbent on the medications used to treat her condition, [Sandberg] has not been able to maintain employment" and is still trying to "create an appropriate medical treatment plan for stabilization." Tr. 865. Ms. Berens continued to treat Sandberg through September 8, 2012, prescribing Topamax, Adderall, Geodon, and Trazodone. Tr. 861.


Disability is the "inability to engage in 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." 42 USC § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 CFR § 404.1520; Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir 1999).

At step one, the ALJ determines if the claimant is performing substantial gainful activity. If so, the claimant is not disabled. 20 CFR § 404.1520(a)(4)(i) & (b).

At step two, the ALJ determines if the claimant has "a severe medically determinable physical or mental impairment" that meets the 12-month durational requirement. 20 CFR § 404.1520(a)(4)(ii) & (c). Absent a severe impairment, the claimant is not disabled. Id.

At step three, the ALJ determines whether the severe impairment meets or equals an impairment "listed" in the regulations. 20 CFR § 404.1520(a)(4)(iii) & (d); 20 CFR Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If the impairment is determined to meet or equal a listed impairment, then the claimant is disabled.

If adjudication proceeds beyond step three, the ALJ must first evaluate medical and other relevant evidence in assessing the claimant's residual functional capacity ("RFC"). The claimant's RFC is an assessment of work-related activities the claimant may still perform on a regular and continuing basis, despite the limitations imposed by his or her impairments. 20 CFR § 404.1520(e); Social Security Ruling ("SSR") 96-8p, 1996 WL 374184 (July 2, 1996).

At step four, the ALJ uses the RFC to determine if the claimant can perform past relevant work. 20 CFR § 404.1520(a)(4)(iv) & (e). If the claimant cannot perform past relevant work, then at step five, the ALJ must determine if the claimant can perform other work in the national economy. 20 CFR § 404.1520(a)(4)(v) & (g); Bowen v. Yuckert, 482 U.S. 137, 142 (1987).

The initial burden of establishing disability rests upon the claimant. Tackett, 180 F.3d at 1098. If the process reaches step five, the burden shifts to the Commissioner to show that jobs exist in the national economy within the claimant's RFC. Id. If the Commissioner meets this ...

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