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Ward v. Berryhill

United States District Court, D. Oregon

January 29, 2018

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

          Merrill Schneider, Schneider, Kerr, & Robichaux, Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata A. Gowie, Assistant United States Attorney, United States Attorney's Office, Michael Howard, Special Assistant United States Attorney, Office of General Counsel, Social Security Administration, Of Attorneys for Defendant.


          Michael H. Simon, United States District Judge

         Sandra Ward (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under the Social Security Act. The administrative law judge's (“ALJ's”) opinion is not based on the proper legal standards and the findings are not supported by substantial evidence. Moreover, pursuant to the grid rules Plaintiff is disabled as of November 30, 2009. It is not clear, however, whether Plaintiff was disabled during the period of December 31, 2008 to November 30, 2009. Therefore, the Commissioner's decision is REVERSED and REMANDED in part for immediate calculation of benefits beginning November 30, 2009, and in part for further proceedings with regard to the period from December 31, 2008 to November 30, 2009.


         The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence means more than a mere scintilla but less than a preponderance.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

         When the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th PAGE 2 - OPINION & ORDER Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.


         A. Plaintiff's Application

         This is Plaintiff's second appeal to the district court. In Ward v. Colvin, No. 3:14-cv-01162-HZ, 2015 WL 5032038, *5-7 (D. Or. Aug. 25, 2015) (“Ward I”), the Court remanded for further proceedings so the ALJ could address the medical opinion of Dr. Cogburn, which had been submitted as additional evidence to the Appeals Council. The Court in Ward I also determined that although the ALJ's interpretation of Dr. Labs' opinion was reasonable based on “the evidence in the record at the time, ” Dr. Cogburn's opinion provided evidence that undermined the ALJ's reasons for discounting Dr. Labs' opinion. Id. at *5. The Court directed the ALJ to address Dr. Cogburn's opinion and reconsider Dr. Labs' opinion in light of the evidence provided by Dr. Cogburn.

         On January 8, 2016, the Appeals Council remanded the case to the same ALJ. AR 914-18. The Court notes that prior to remand, Plaintiff had filed another claim for DIB and SSI, and on January 28, 2015, Plaintiff was determined to have been disabled beginning June 1, 2014. AR 821. On remand, the ALJ convened a second hearing, which was held on August 18, 2016. AR 842-67. In a written decision issued on September 8, 2016, the ALJ applied the five-step sequential evaluation process, and found that Plaintiff was not disabled from December 31, 2008, through June 1, 2014. AR 821-34. Plaintiff appealed the ALJ's decision to the Social Security Administration Appeals Council, which denied Plaintiff's petition for review, making the ALJ's order the final agency order. Plaintiff timely appealed.

         B. The Sequential Analysis

         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); see also 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). 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), ...

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