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Moore v. Berryhill

United States District Court, D. Oregon, Eugene Division

August 24, 2017

SHERRI K. MOORE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Ann Aiken United States District Judge.

         Plaintiff 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.


         In June 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.


         The 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).


         The 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).

         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(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).

         The ALJ found plaintiff retained the residual functional capacity ("RFC") to

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.


         Plaintiff 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.

         Before 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 disability stands").

         Whatever 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.

         I now proceed to address plaintiffs allegations of error.

         I. Plaintiff's ...

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