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Fischer v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Eugene Division

February 24, 2017

LEE J. FISCHER, Plaintiff,
COMMISSIONER, Social Security Administration, Defendant.



         Plaintiff Lee J. Fischer brings this action pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (the “Commissioner”). The Commissioner denied plaintiff Disabled Child's Insurance Benefits under Title II of the Act, § 202(d)(1)(B)(ii), as amended, 42 U.S.C. § 402(d)(1)(B)(ii). Plaintiff requests a determination that she became disabled before her twenty-second birthday, and thus is entitled to Disabled Child's benefits; she asks the Court to reverse the decision of the Administrative Law Judge (the “ALJ”) and remand this matter for immediate calculation and payment of such benefits, or in the alternative, to remand for further administrative proceedings. See Pl.'s Br. (Docket No. 8), at 20. The Commissioner opposes plaintiff's Complaint in part, and requests that the Court remand for further administrative proceedings. See Def.'s Br. (Docket No. 13), at 8-9. For the following reasons, the Court REVERSES the Commissioner's decision and REMANDS this matter for immediate calculation and award of benefits.


         Plaintiff was born on November 8, 1988, and turned twenty-two years old on November 8, 2010. Tr. 117.[1] At the time of plaintiff's alleged onset date of disability-December 1, 2009-she was twenty-one years old, under the age of twenty-two; at the time of the ALJ's established onset date of disability-April 2, 2012, Tr. 20-she was twenty-three years old.

         Plaintiff suffers from major depressive disorder and generalized anxiety disorder (under the applicable regulations, 12.04 Affective Disorders and 12.06 Anxiety-related Disorders, respectively, Tr. 22-26[2]), characterized, inter alia, by depression, anxiety, panic attacks, difficulty concentrating, anhedonia, [3] insomnia, inability to eat, nausea, and abdominal pain. Tr. 22-27 & 389-91. She is largely unable to function by, or to care for, herself. Tr. 23-26.

         Plaintiff matriculated at Princeton University at age sixteen. Tr. 23. In December 2009, she experienced severe depression and anxiety, and received inpatient mental health treatment at the Princeton University Health Services and Counseling and Psychological Services. Tr. 344-75. She then left school for home, and has not been able to return to Princeton since, or even audit classes at nearby colleges. Tr. 310. In 2011, she began experiencing stomach pains and other abdominal symptoms, resulting in an inability to eat, and/or anorexia, Tr. 389-442; this may have resulted from plaintiff's depression and anxiety, Tr. 415. These gastrointestinal problems caused dramatic weight loss: from 106 pounds to 76 pounds in two-and-a-half years (March 2010 to November 2012). Tr. 386 & 414-15. Plaintiff resides with her parents, Robert J. Fischer and Jianping Li, who care for her. Tr. 202, 263, 270 & 307.


         Plaintiff protectively filed an application for Disabled Child's Insurance Benefits on October 29, 2012. Tr. 19. She also protectively filed an application for Supplemental Security Income Benefits on September 3, 2013. Id. In both applications, plaintiff alleged a disability onset date of November 1, 2008, id., though this was corrected to December 1, 2009, Tr. 114 & 177, as the ALJ acknowledged at the hearing, Tr. 47. Plaintiff's application for Disabled Child's benefits was denied initially on February 20, 2013, and upon reconsideration on August 20, 2013. Tr. 19. Plaintiff filed a written request for hearing on September 4, 2013. Id. The Supplemental Security Income Benefits application was escalated to the hearing level without initial or reconsideration determinations, so it could be considered alongside plaintiff's Disabled Child's benefits application at the hearing. Id. A hearing was held on August 27, 2014, in Eugene, Oregon, before ALJ Robert F. Spaulding. Tr. 19 & 31. A vocational expert, Steven R. Cardinal, appeared at the hearing but did not testify. Tr. 19. No medical advisor expert appeared at the hearing or was consulted. See Tr. 41-85 (hearing transcript).

         On October 23, 2014, the ALJ issued a decision finding plaintiff disabled under the Act as of April 2, 2012-after her twenty-second birthday-but not before. Tr. 20 & 31. The ALJ found that the record did not support plaintiff's allegations of disability dating from December 2009. Tr. 22. This determination entitled plaintiff to Supplemental Social Security Income, but not to Disabled Child's benefits, because in order to receive such benefits she would have to have become disabled before her twenty-second birthday. Tr. 30-31; 42 U.S.C. § 402(d)(1)(B)(ii).

         Plaintiff then sought review by the district court. Compl. (Docket No. 1).[4]


         The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (quotation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (“[The court] must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation.” (quotation omitted)).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         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. § 416.920. First, the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b). At step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41 & n.5; 20 C.F.R. § 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner determines whether the impairment meets or equals “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.; 20 C.F.R. § 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. At step four, the Commissioner determines whether the claimant can still perform “past relevant work.” Id.; 20 C.F.R. § 416.920(e). If the claimant can work, she is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 141. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. Id. § 416.966.


         At step one of the sequential process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date of April 2, 2012. Tr. 21. At step two, the ALJ determined that plaintiff had the medically determinable impairments of major depressive disorder and general[ized] anxiety disorder, but that prior to April 2, 2012, these did not, singularly or in combination, significantly limit plaintiff's ability to perform basic work- related activities, and so were not “severe” under the Act. Tr. 22. However, the ALJ further determined that, beginning on April 2, 2012, plaintiff did have the following severe impairments: major depressive disorder, recurrent, severe without psychotic features; general[ized] anxiety disorder; and panic disorder; she thus was not disabled before April 2, 2012, but became disabled on that date. Tr. 26 & 30.


         Plaintiff argues that the ALJ committed three legal errors: (1) he did not give any weight to the opinions of treating physicians Drs. James Buie and John Ford concerning the period between December 1, 2009, and April 2, 2012; (2) he did not consider the observations of five lay third-party witnesses for the time before April 2, 2012; and (3) in the alternative, he did not comply with Social Security Ruling (“SSR”) 83-20. Pl.'s Br. (Docket No. 8), at 4. In response, the Commissioner argues that, although the ALJ did commit legal error by not crediting certain testimony, the appropriate remedy is to remand for further proceedings and evaluation of a disability onset date. Def.'s Br. (Docket No. 13), at 2-7. As discussed below, the Court finds that the ALJ erred by not giving weight to the treating physicians' opinions, and by not considering the third-party testimony, for the period before April 2, 2012. The Court further finds that, when that evidence is properly considered, and that testimony is credited as true, the record establishes plaintiff's disability onset date of December 1, 2009.

         I. The Opinions of Treating Physicians Buie and Ford

         A. James Buie, M.D.

         1. Dr. Buie's Observations and Opinions

         James Buie, M.D., was plaintiff's primary care physician from at least 2006, Tr. 445, through his retirement in June 2013, Tr. 513. He opined on plaintiff's condition multiple times in the Administrative Record. After plaintiff's return home from Princeton in December 2009, plaintiff saw Dr. Buie for a physical, and he diagnosed her with “Major depressive disorder with panic and anxiety.” Tr. 382-84. He recorded her reports of depression, anxiety, panic attacks, “sadness, crying, [and] inactivity.” Tr. 383. In notes from subsequent office visits over the next few months, Dr. Buie repeated findings of depression, insomnia, and anxiety. Tr. 385-88.

         On November 15, 2012, Dr. Buie provided plaintiff with a letter in which he stated that, since her return from Princeton in 2009, she has “been unable to return to work or to school and [has] regressed into a depressive state which is now associated with GI problems such as anorexia and abdominal pain, and insomnia.” Tr. 445, 482-83. In a similar letter from April 2013, Dr. Buie stated that plaintiff “has mental impairment [sic] that has kept her from doing any kind of substantial work since at least 2009 when she was about 21 years old.” Tr. 481. In another letter from April 2013, Dr. Buie reported plaintiff's symptoms beginning in fall 2009, including difficulty concentrating, sleeping, and getting out of bed; he observed that she had poor judgment and insight; he recorded her as feeling hopeless, with low energy, low self-esteem, and anhedonia; and he recorded “panic attacks with pseudoparalysis, sweating, overwhelming and inability to function.” Tr. 484. He reported that plaintiff demonstrated “depression, anxiety, panic attacks and insomnia.” Tr. 485. Dr. Buie continued:

Since 2009 she has left Princeton; has not recovered, nor had any substantial work opportunity, function, or significant treatment of her depression, nor has been able to do any substantial work or function. She is completely dependent in most adult daily skills of living. She is dysfunctional in multiple areas . . . .


         2. Legal Standard Regarding a Treating Physician's Opinions

         “[I]f a treating physician's medical opinion is supported by medically acceptable diagnostic techniques and is not inconsistent with other substantial evidence in the record, the treating physician's opinion is given controlling weight.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). “An ALJ may reject the uncontradicted medical opinion of a treating physician only for ‘clear and convincing' reasons supported by substantial evidence in the record.” Id. “Similarly, an ALJ may reject a treating physician's uncontradicted opinion on the ultimate issue of disability only with ‘clear and convincing' reasons supported by substantial evidence in the record.” Id. at 1202-03.

         3.The ALJ's Evaluation of Dr. ...

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