United States District Court, D. Oregon, Eugene Division
SHERRI K. MOORE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
Aiken United States District Judge.
Sheni K. Moore brings this action pursuant to the Social
Security Act ("Act"), 42 U.S.C. § 405(g), to
obtain judicial review of a final decision of the
Commissioner of Social Security ("Commissioner").
The Commissioner denied plaintiffs application for
Supplemental Security Income ("SSI"). For the
reasons set forth below, the Commissioner's decision is
reversed and this case is remanded for further proceedings.
2012, plaintiff applied for SSI. She alleged disability
beginning June 1, 2009, due to depression, bipolar disorder,
fibromyalgia, post-traumatic stress disorder, chronic back
pain, and high blood pressure. Her application was denied
initially and upon reconsideration. On November 23, 2015,
plaintiff appeared at a hearing before an ALJ. She testified
and was represented by an attorney. A vocational expert
("VE") also testified. The ALJ found plaintiff not
disabled in a written decision issued January 28, 2016. After
the Appeals Council denied review, plaintiff filed a
complaint in this Court.
district court must affirm the Commissioner's decision if
it is based upon proper legal standards and the findings are
supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Berry v. Astrue, 622 F.3d 1228, 1231
(9th Cir. 2010). "Substantial evidence is more than a
mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Gutierrez v.
Comm'r Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014)
(citation and quotation marks omitted). The court must weigh
"both the evidence that supports and the evidence that
detracts from the ALJ's conclusion." Mayes v.
Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the
evidence is subject to more than one interpretation but the
Commissioner's decision is rational, the Commissioner
must be affirmed, because "the court may not substitute
its judgment for that of the Commissioner." Edlund
v. Massanari 253 F.3d 1152, 1156 (9th Cir. 2001).
initial burden of proof rests upon the plaintiff to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the plaintiff 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).
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(a)(4). At step one, the ALJ found plaintiff had not
engaged in "substantial gainful activity" since her
application date of June 28, 2012. 20 C.F.R. §§
416.9220(a)(4)(i), (b). At step two, the ALJ found plaintiff
had the following severe impairments: "chronic back
pain, unspecified diffuse connective tissue disease, bipolar
depression, borderline intellectual functioning, migraine,
chronic pain syndrome, obesity, chronic tunnel syndrome,
osteoarthritic changes to the joints of the hands, ... and
edema of the legs and feet." Tr. 20; 20 C.F.R.
§§ 416.9220(a)(4)(h), (c). At step three, the ALJ
determined plaintiffs impairments, whether considered singly
or in combination, did not meet or equal "one of the
listed impairments" that the Commissioner acknowledges
are so severe as to preclude substantial gainful activity. 20
C.F.R. §§ 416.9220(a)(4)(iii), (d).
found plaintiff retained the residual functional capacity
perform light work as defined in 20 C[.F.R. §]
416.967(b) except she can lift, carry, push, and pull objects
that weigh up to 20 pounds occasionally and up to ten pounds
frequently; can stand and walk for up to six of eight hours;
can sit for up to six of eight hours; can no more than
frequently operate foot controls with either lower extremity;
can no more than frequently handle, finger, or feel with
either upper extremity; can never climb ladders or scaffolds;
can no more than frequently climb ramps or stairs; can never
tolerate exposure to unprotected heights and/or moving
mechanical parts; is limited to the performance of simple,
routine tasks; can use judgment for only simple work-related
decisions; and can no more than occasionally balance, stoop,
kneel, crouch, or crawl.
Tr. 22. At step four, the ALJ concluded plaintiff could not
perform any of her past relevant work. 20 C.F.R. §§
416.9220(a)(4)(iv), (f). At step five, however, the ALJ found
that plaintiff could perform work existing in the national
economy; specifically, plaintiff could work as a laundry
sorter, routing clerk, or photocopy machine operator, 20
C.F.R. §§ 416.9220(a)(4)(v), (g)(1). Accordingly,
the ALJ found plaintiff not disabled and denied her
applications for benefits.
alleges the ALJ erred by: (1) discrediting plaintiffs
testimony about the severity of her symptoms without legally
sufficient justification; (2) ignoring a pertinent portion of
the opinion of examining psychologist, Dr. Ewell; (3)
violating his duty to develop the record with respect to the
extent of plaintiffs mental limitations; (4) ignoring
treating physician Dr. Ramirez's limitation regarding
forceful flexion of the elbows; (5) formulating an incomplete
RFC; and (6) finding plaintiff could perform jobs that exceed
her physical and mental limitations.
proceeding to plaintiffs allegations of error, I note that
remand would be necessary in this case even if all
plaintiffs' arguments failed. Although the ALJ
acknowledged that plaintiff alleged she became disabled in
2009, all findings in the decision are tied to plaintiffs
2012 application date. See Tr. 18 (concluding that
plaintiff has not been under a disability "since June
28, 2012, the date the application was filed"); Tr. 20
(finding that plaintiff has engaged in no substantial gainful
activity since the application date). This oddity appears
attributable to some confusion about a possible amended onset
date. On December 16, 2015, shortly after her disability
hearing, plaintiff obtained new representation. See
Tr. 179. In a letter dated December 17, 2015, the firm that
represented plaintiff at the hearing wrote to the ALJ to
amend the disability onset date to plaintiffs application
date of June 28, 2012. Tr, 203, In his written decision, the
ALJ expressly declined to amend the alleged onset date
because plaintiff retained new counsel on December 16, 2015,
one day before that letter was written, See Tr. 18
(acknowledging receipt of the request but finding that due to
the change in representation, the "original onset of
the reason for the error, remand is necessary to correct it.
The ALJ made no findings with respect to three years during
the alleged period of disability. Although neither party
points out this particular error, I raise it sua
sponte because I cannot review a decision the ALJ did
not make. See Connett v. Bamhart, 340 F.3d 871, 874
(9th Cir. 2003) ("We are constrained to review the
reasons the ALJ asserts."). Moreover, as explained in
further detail below, the record strongly suggests that the
error was harmful because plaintiffs mental limitations
appear to have been substantially more severe during the 2009
to 2012 period than they were at the time of the hearing.
proceed to address plaintiffs allegations of error.