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Sutherland v. Commissioner Social Security Administration

United States District Court, D. Oregon

February 10, 2017


          KAREN STOLZBERG, Attorney for Plaintiff.

          BILLY J, WILLIAMS United States Attorney District of Oregon JANICE E. HEBERT Assistant United States Attorney.

          FRANCO L. BECIA Special Assistant United States Attorney, Attorneys for Defendant.



         MARSH, Judge Plaintiff Suzanne E. Sutherland seeks judicial review of the partially favorable decision of the Commissioner of Social Security denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, I reverse the Commissioner's decision concerning Plaintiffs DIB application and remand for an immediate calculation and award of benefits.


         On December 19, 2011, Plaintiff protectively filed a Title II application for a period of disability and disability insurance ("DIB") benefits. On February 17, 2012, Plaintiff protectively filed a Title XVI application for supplemental security income ("SSI") benefits. In those applications, Plaintiff alleged disability beginning December 31, 2003. On April 16, 2013, Plaintiff protectively filed a Title II application for disabled widow's benefits, alleging disability beginning Februaiy 28, 2008. All of Plaintiffs claims were denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge ("ALJ"). The ALJ held a hearing on July 2, 2014, at which Plaintiff appeared with her attorney and testified. A vocational expert, Paul K. Morrison, also appeared at the hearing and testified. At the hearing, Plaintiff amended the alleged onset of disability date to January 1, 2010.

         On July 31, 2014, the ALJ issued a partially favorable decision, finding that Plaintiff became disabled on February 17, 2012 at step three (meeting Listing 12.06 for Anxiety Related Disorders), and therefore was entitled to SSI and disabled widow's benefits. However, the ALJ determined Plaintiff was not entitled to DIB benefits because she did not have any severe impairments at step two prior to her date last insured. The Appeals Council denied Plaintiffs request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review. Plaintiff appeals the unfavorable DIB portion of the ALJ's decision in this action.

         Plaintiff has a long history of domestic violence abuse. Plaintiff described long-term exposure to abuse from her ex-husband, to whom she was married for 17 years. Plaintiff was severely abused in her next relationship by her then boyfriend, who she alleges continued to stalk, rape and attempted to murder her after she ended that relationship in 2006. Social Security Administrative Record ("Tr.") at 59-60, ECF No. 12. Plaintiff has not been employed full-time since 2002, and last attempted working in 2008. Tr. 258. In 2011, Plaintiff began seeking counseling and treatment to deal with the consequences of her abuse from the Domestic Violence Resource Center and the Sexual Assault Resource Center. Tr. 51-52, 68-69.

         In June 2013, Plaintiff was hospitalized for a suicide attempt by overdose, then enrolled in an Intensive Outpatient Behavioral Health treatment program. Tr. 1080, 1085-92. Plaintiff continues to experience PTSD, and has severe depression and anxiety with suicidal ideation. Tr. 1080; 1150.

         Plaintiff was 47 years old on her amended alleged onset of disability date, and 51 years old at the July 2014 hearing. Plaintiff has completed high school. Plaintiff has past relevant work as a travel agent, a customer service representative at call centers, and a collections agent.


         The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner to show that the claimant can do other work that exists in the national economy. Hill v. Astrne, 698 F.3d 1153, 1161 (9th Cir. 2012).

         The ALJ, found that Plaintiff met the insured status requirements for a DIB application through September 30, 2010. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since her amended alleged onset date, January 1, 2010. At step two, the ALJ found that prior to February 17, 2012, Plaintiff had the following medically determinable impairments: anxiety disorder, diabetes mellitus, and basal cell carcinoma. However, the ALJ concluded that these impairments or combination of impairments did not significantly limit Plaintiffs ability to perform basic work-related activities for 12 consecutive months. Consequently, the ALJ determined that Plaintiff did not have a severe impairment or combination of impairments prior to February 17, 2012. However, the ALJ found that beginning February 17, 2012, Plaintiffs PTSD and depression are severe impairments at step two.

         At step three, the ALJ found that since February 17, 2012, Plaintiffs PTSD and depression meet Listing 12.06. Thus, the ALJ concluded that Plaintiff was not disabled prior to February 17, 2012, but became disabled on that date and continued to be disabled through the date of the decision.


         Plaintiff contends that the following errors were committed: (1) the ALJ erred in failing to find Plaintiffs anxiety and depression severe prior to February 17, 2012; (2) the ALJ erred in failing to call a medical expert under SSR 83-20 to assess an onset date prior to February 17, 2012; (3) the ALJ erred in assessing the medical opinion evidence; (4) the ALJ erred in evaluating Plaintiffs credibility; and (5) the ALJ's decision is not supported by substantial evidence in light of the opinion of Scott T. Alvord, Psy.D., rendered on December 13, 2014, ...

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