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Bar v. Commissioner of Social Security

United States District Court, D. Oregon

April 30, 2018

HAR BAR, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          George J. Wall, Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney, Sarah Moum, Special Assistant United States Attorney, Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon, United States District Judge.

         Plaintiff, Ms. Har Bar, filed a motion requesting a remand order pursuant to sentence six of 42 U.S.C. 405(g). Because Plaintiff has presented evidence material to her claim for Supplemental Security Income (“SSI”), as well as good cause for not submitting the evidence earlier, her motion for remand is GRANTED.

         STANDARD OF REVIEW

         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); Molina v. Astrue, 673 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” and is more than a “mere scintilla” of the evidence but less than a preponderance. Id. at 1110-11 (quotation omitted). The Court must uphold the ALJ's findings if they “are supported by inferences reasonably drawn from the record[, ]” even if the evidence is susceptible to multiple rational interpretations. Id. at 1110. The Court may not substitute its judgment for that of the Commissioner. Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (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) (quotation omitted).

         BACKGROUND

         A. Plaintiff's Application

         Plaintiff filed her application for SSI on July 29, 2013, alleging disability as of May 30, 2012. AR 74. The claim was denied initially and upon reconsideration, and Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”), which was held on November 4, 2015. AR 40-72. After the hearing, ALJ Sue Leise issued a partially favorable decision dated March 2, 2016, finding Plaintiff disabled from July 29, 2013 through September 1, 2015, based on the severe impairments of fibromyalgia and depression. AR 21-32. On April 20, 2017, the Appeals Council granted Plaintiff's request for review of the ALJ's decision, and determined that the ALJ erred by finding that Plaintiff was disabled for a period of time instead of finding that Plaintiff was not disabled through the date of the ALJ's decision, March 2, 2016. AR 181-83. The Appeals Council allowed Plaintiff to submit additional briefing and evidence pursuant to the April 20, 2017 decision. AR 82.

         Although Plaintiff subsequently submitted a legal brief and new evidence, on June 26, 2017, the Appeals Council essentially affirmed its earlier decision. AR 1-10. With regard to the new evidence, the Appeals Council stated, “this additional evidence does not show a reasonable probability that it would change the outcome of this decision. The Appeals Council did not consider and exhibit this evidence.” AR 6. Accordingly, the new evidence was not made part of the administrative record, and therefore the Appeals Council's determination that Plaintiff was not disabled became the final decision of the Commissioner. Plaintiff now seeks a remand for further proceedings to consider the new evidence pursuant to sentence six of 42 U.S.C. § 405(g).

         Born in June 1985, Plaintiff was 28 years old on the alleged disability onset date and 30 years old at the time of the second administrative hearing. AR 75. She cannot speak English, and indicated she attended school through the ninth grade. AR 27, 219, 221. She alleges disability due to AIDS, fibromyalgia, psychosis, major depression, PTSD, chronic pain, chronic fatigue, headaches, and nausea, and vomiting. AR 75-76.

         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. § 432(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; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. § 404.1520(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). 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. 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). If the ...

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