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Davis v. Berryhill

United States District Court, D. Oregon, Eugene Division

April 11, 2017

JUDY L. DAVIS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION & ORDER

          MARK D. CLARKE, Magistrate Judge.

         Plaintiff Judy L. Davis seeks judicial review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of the Social Security Administration denying her application for Disability Insurance Benefits pursuant to the Social Security Act. For the reasons below, the Commissioner's decision is REVERSED and REMANDED for immediate award of benefits.[1]


         Plaintiff was born November 1, 1954, and is currently 62 years old. Tr. 135. Plaintiff is married, has an eleventh-grade education, and previously worked as a cook. Tr. 32, 33, 136.

         In February 2013, Plaintiff filed for a period of disability and disability benefits; she alleged disability onset as of March 1, 2008. Tr. 135-38. In October 2014, Plaintiff had a hearing before an administrative law judge ("ALJ"). Tr. 23-73. At the end of the hearing, and after conferring with her attorney, Plaintiff amended the alleged onset date to July 1, 2013, which was accepted by the ALJ. Tr. 72.

         On November 27, 2013, Plaintiffs daughter brought Plaintiff to Samaritan Albany General Hospital in Albany, Oregon; her daughter had found Plaintiff "nearly unresponsive, lying in vomit in bed." Tr. 16, 521. Dr. Stephanie Emery, M.D., the treating physician, admitted Plaintiff into the intensive care unit, and Plaintiff remained in the hospital for a month. Tr. 520, 531. Dr. Emory diagnosed Plaintiff with a neck abscess and sepsis, which had been caused by a lice infection and/or spider bite; Dr. Emory described Plaintiff as being "acutely ill." Tr. 521, 527. Moreover, Dr. Emory's notes from the November 27 admission indicate Plaintiff was lethargic, responded unintelligibly, and "[h]er fine motor skills were lacking on the left bilateral lower extremities as she did not move on command." Tr. 16. She noted that Plaintiffs daughter pointed out that Plaintiffs left arm had not worked well for about two years and wondered whether her mother may have had "a stroke at some point." Tr. 521.

         After observing Plaintiff for a month, on December 31, 2013, Dr. Emory determined that Plaintiff had suffered from a cardiovascular accident "6 month[s] ago."[2] Tr. 531. And, indeed, when Plaintiff was subsequently admitted to Albany General in May 2014 for a stroke, Dr. Emory stated Plaintiff was previously "hospitalized in November [2013] . . . due to neck abscess due to lice infection. Summer that year she had a [right side basal ganglia] [cardiovascular accident]" that led to "residual [left upper extremity/lower extremity] weakness." Tr. 237.

         As stated, Plaintiff originally applied for disability in February 2013, prior to her month-long hospitalization and May 2014 stroke. At the time, Plaintiff alleged disability due to diabetes, heart problems, and high blood pressure. Tr. 13. Importantly, for matters of this case, Plaintiffs Social Security insured status ended on September 30, 2013, her "date last insured." Tr. 11. Accordingly, to be eligible for disability benefits, Plaintiff must have established a disability on or before this date. 42 U.S.C. § 416(i)(3); 20 C.F.R. §§ 404.131, 404.315. At Plaintiffs October 2014 hearing, she argued she suffered a stroke in summer 2013, before her date last insured, an argument seemingly corroborated by Dr. Emory's above-mentioned treatment notes. Tr. 22. The ALJ, however, held that Plaintiff suffered her first stroke on November 27, 2013, the date she was first admitted into Albany General. Tr. 13. Hence, because Plaintiffs date last insured was September 30, 2013, the ALJ ruled that her stroke was "not a medically determinable impairment for the time period at issue, " Tr. 13, a critical finding because the Social Security Administration's hired vocational expert testified that if Plaintiff had indeed suffered a stroke before her date last insured, "it would be fair to say that that would preclude her past work and preclude any jobs to which she might have transferable skills, " a determination that would have resulted in a finding of disability. Tr. 66-70.

         In finding that the stroke was not a medically determinable impairment, however, the ALJ concluded that the severe impairments he did find she suffered from-diabetes mellitus, hypertension, and obesity-did not preclude Plaintiff from being capable of performing her past relevant work as a cook; indeed, he found she could "perform a full range of work at all exertional levels." Tr. 13, 14, 17. Accordingly, on February 2, 2015, the ALJ determined Plaintiff was not disabled as defined by the Social Security Act.[3] On May 24, 2016, the Appeals Council denied Plaintiffs request for review, making the ALJ's denial the Commissioner's final decision. Tr. 1. This timely appeal followed.


         A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm 'r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing "substantial gainful activity"? 20 C.F.R. §§404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment "severe" under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(H); 416.920(a)(4)(H). Unless expected to result in death, an impairment is "severe" if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or must be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(H); 416.920(a)(4)(H). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or equal" one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis proceeds to the "residual functional capacity" ("RFC") assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's RFC. This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant work" with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 954. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55; Tackett, 180F.3dat 1099.


         Applying the five-step analysis, the ALJ found:

1. Plaintiff did not engage in substantial gainful activity during the period from her amended alleged onset date of July 1, 2013, through her date last insured, September 30, 2013. (20 CFR § 404.1571 et seq.). Tr. 13.
2. Plaintiff has the following severe medically determinable impairments: diabetes mellitus, hypertension, and obesity. (20 ...

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