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Tavera v. Berryhill

United States District Court, D. Oregon, Portland Division

September 21, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Angela Lee Tavera 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 granted plaintiffs application for Supplemental Security Income ("SSI") but denied plaintiffs application for Disability Insurance Benefits ("DIB"). For the reasons set forth below, the Commissioner's decision is reversed and remanded for further proceedings.


         In March 2012, plaintiff applied for both Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). She alleged intellectual disability beginning December 31, 1998. Plaintiffs application for SSI was approved, but her application for DIB was denied- initially on August 30, 2012, and upon reconsideration on February 6, 2013. A hearing was set for August 11, 2014, but plaintiff did not attend. Another hearing was held on January 12, 2015, before Administrative Law Judge Riley Atkins. At the hearing, plaintiff testified and was represented by counsel. No other testimony was taken. On January 27, 2015, the ALJ issued an unfavorable decision. He found that plaintiff was not disabled within the meaning of sections 216(i) and 223(d) of the Act at any time through June 30, 2001, plaintiffs Title II date last insured ("DLI"). The Appeals Council denied review on August 30, 2016, and 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 of Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014) (citation and quotation marks omitted). However, even a decision supported by substantial evidence must be set aside if the Commissioner did not apply the proper legal standards in evaluating the evidence. Reddick v. Chafer, 157 F.3d 715, 720 (9th Cir. 1998). 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; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).


         The plaintiff bears the initial burden of proving she is disabled. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To satisfy this burden, 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 analysis for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4). Five questions are asked, in order, until the adjudicator arrives at a clear finding of disability or no disability. Id.

         At step one of the process, the ALJ found that plaintiff did not engage in any substantial gainful activity ("SGA") at any time between the alleged onset date and the DLI ("the relevant period"). Plaintiff alleges a disability onset date of December 31, 1998. Her DLI for Title II purposes is June 30, 2001. Therefore, the relevant period-during which plaintiff must show she was disabled-ended more than 16 years ago; at the time of the hearing, it was already 14 years past. There was no contemporaneous medical evidence demonstrating plaintiffs disability during the relevant period. Thus, at step two of the process, the ALJ concluded that there was insufficient medical evidence to support a finding of disability before the DLI, Accordingly, the ALJ ended his analysis at step two, largely persuaded by the lack of evidence.


         Plaintiff concedes that any remand must be for further proceedings, as the record is insufficiently developed for an immediate award of benefits. The question is whether the ALJ's opinion contains errors of law sufficiently harmful to justify a remand of this case for an additional hearing. I find that it does.

         Plaintiff alleges that the ALJ erred in failing to consult a medical expert to assist in inferring an onset date of her disability. It is unclear from the record whether that error alone harmed plaintiffs claim, because that error's effect has been obscured by other errors in the ALJ's opinion, I find those errors were harmful and warrant a remand of this case for additional proceedings.

         I. The ALJ's Failure to Adequately Weigh the Medical Evidence Was Legal Error.

         When weighing the medical evidence and resolving ambiguities therein, "the ALJ is the final arbiter[.]" Tommasetti v. Astrue,533 F.3d 1035, 1041 (9th Cir. 2008). Where "the record contains conflicting medical evidence, the ALJ is charged with determining credibility and resolving the conflict[.]" Chaudhry v. Astrue,688 F.3d 661, 671 (9th Cir. 2012) (internal quotation marks omitted). Nevertheless, the ALJ must "explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over another[.]" Garrison v.Colvin,759 F.3d 995, 1012 (9th Cir. 2014). An ALJ commits reversible error when he rejects or assigns lesser weight to an opinion "while doing nothing more than ignoring it, asserting without explanation that another ...

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