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Michael B. v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

August 8, 2018

MICHAEL B.,[1] Plaintiff,


          Ann Aiken United States District Judge

         Plaintiff Michael B. brings this action pursuant to the Social Security 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 applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). For the reasons set forth below, the Commissioner's decision is reversed and remanded for further proceedings.


         In January 2012, plaintiff applied for DIB and SSI. He alleged disability beginning December 31, 2006, due to schizophrenia, bipolar disorder, manic depression, PTSD, visual and auditory problems, anger management problems, migraine headaches, trouble sleeping, and difficulty concentrating. Plaintiffs applications were denied initially and upon reconsideration. On October 17, 2013, plaintiff appeared at a hearing before an ALJ. On October 31, 2013, the ALJ issued a decision finding plaintiff not disabled. After the Appeals Council denied review, plaintiff filed a complaint in this Court.

         On June 10, 2016, Judge King reversed and remanded for further proceedings. Judge King determined that the ALJ's decision was not supported by substantial evidence for two reasons. First, Judge King held that the ALJ had discredited plaintiffs subjective symptom testimony without providing the requisite clear, convincing reasons for doing so. In particular, Judge King found that the ALJ had erred by (1) failing to adequately address the medical evidence that plaintiff suffers from hallucinations; (2) failing to consider the possibility that plaintiffs mental health symptoms may wax and wane; and (3) questioning the severity of plaintiffs symptoms because plaintiff has not consistently sought mental health treatment without exploring possible explanations for that lack of treatment, including inability to afford treatment and a possible causal relationship between the mental illness and failure to seek treatment.

         Second, Judge King found that the ALJ had violated her duty to develop the record and expressly found that the record was "inadequate to adequately assess [plaintiffs] mental impairments." Tr. 643. Judge King noted that the ALJ had given "significant weight" to the opinion of Dr. Dooley, a consultative physician, yet had failed to account for the "serious symptoms" implicit in Dr. Dooley's opinion. Tr. 644. Judge King remanded "for further evaluation of [plaintiffs] mental impairments, to include objective testing if necessary to fully assess [plaintiffs] functioning." Tr. 644.

         The Appeals Council issued a remand order, and the ALJ convened a second hearing on May 9, 2017. At the hearing, plaintiffs counsel requested a consultative examination, but the ALJ denied that request. On June 1, 2017, the ALJ issued a second decision, again finding plaintiff not disabled. The Appeals Council denied review, and plaintiff now seeks judicial review.


         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). 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 inteipretation 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 claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant 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. § 404.1520(a)(4); id. § 416.920(a)(4). At step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged disability onset date. Tr. 572; 20 C.F.R. § 404.1520(a)(4)(i), (b); id. § 416.920(a)(4)(i), (b). At step two, the ALJ found plaintiff suffers from the severe impairments of affective disorder and personality disorder. See 20 C.F.R. § 404.1520(a)(4)(ii), (c); id. § 416.920(a)(4)(ii), (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. Tr. 573; 20 C.F.R. §404.1520(a)(4)(iii), (d); id § 416.920(a)(4)(iii), (d). The ALJ found plaintiff retained the residual functional capacity ("RFC")

to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: he can consistently maintain concentration, persistence, and pace for simple as well as detailed tasks, as long as the detailed tasks are not highly complex (meaning not more than SVP 4); and he should have only ...

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