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Melton v. Commissioner Social Security Administration

United States District Court, D. Oregon, Portland Division

September 20, 2018

DAVID D. M.[1], Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY[2], Defendant.

          OPINION AND ORDER

          Ann Aiken United States District Judge

         Plaintiff David D. M. 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 plaintiff s application for Disability Insurance Benefits ("DIB"), For the reasons set forth below, the Commissioner's decision is reversed and remanded for further proceedings consistent with this opinion.

         BACKGROUND

         On September 24, 2009, plaintiff applied for a period of disability, DIB and Social Security Income ("SSI"). He alleged disability beginning August 15, 2000, due to a traumatic brain injury. Plaintiffs applications were denied initially and upon reconsideration. On June 13, 2011, plaintiff appeared at a hearing before an ALJ. At the hearing, plaintiff and a vocational expert ("VE") testified. Plaintiff was represented by a non-attorney representative. On June 20, 2011, the ALJ issued a partially favorable written decision, The ALJ granted plaintiffs SSI application, finding him disabled as of September 24, 2009, his application date. But the ALJ denied plaintiffs DIB application, finding he was not disabled on December 31, 2005, his date last insured ("DLI") for Title II purposes. Plaintiff appealed, and the Appeals Council denied his request for review on September 10, 2013.

         On November 8, 2013, plaintiff filed a complaint to the United States District Court for the District of Oregon. On November 25, 2015, the District Court issued a remand order for further proceedings. On March 11, 2016, the Appeals Council issued a remand order affirming the finding of disability as of September 24, 2009, and requesting further proceedings consistent with the District Court's order for the earlier period, Upon remand, the ALJ held another hearing on October 19, 2016, specifically addressing the DIB claim. At the hearing, plaintiff appeared and two impartial medical experts testified, Plaintiff was represented by an attorney. On November 3, 2016, the ALJ issued an unfavorable written decision. The ALJ concluded that plaintiff was not disabled within the meaning of the Act from August 15, 2000, through his DLI. Because plaintiffs Exceptions with the Appeals Council were dismissed and the Appeals Council did not assume jurisdiction over the matter, the ALJ's decision is the Commissioner's final decision. 20 CF.R. § 404.984(d). On March 3, 2017, plaintiff filed the present complaint.

         STANDARD OF 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 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." Edlnnd v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

         COMMISSIONER'S DECISION

         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 CF.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 August 15, 2000, the alleged disability onset date. 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id. §§ 416.920(a)(4)(i), (b). At step two, the ALJ found plaintiff had the following severe impairment: "traumatic brain injury." Tr. 257; 20 C.F.R. §§ 404.1520(a)(4)(h), (c); id §§ 416.920(a)(4)(h), (c). At step three, the ALJ determined that through the DLI, 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. §§ 404.1520(a)(4)(iii), (d); id. §§ 416.920(a)(4)(iii), (d).

         The ALJ then assessed plaintiffs residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(e); id. § 416.920(e), In addition to other limitations not relevant to this appeal, the ALJ found plaintiff was able to perform light work as defined in 20 C.F.R. § 404.1567(b) except that he could perform only simple, entry-level work. Tr. 258-59. At step four, the ALJ concluded that through the DLI, plaintiff was capable of performing past relevant work as a production assembler and as a clean-up worker. Tr. 263; 20 C.F.R. §§ 404.1520(a)(4)(iv), (f). The ALJ found plaintiff not disabled, as defined by the Act, at any time from August 15, 2000, through the DLI, December 31, 2005 (20 C.F.R. §§ 404.1520(f) and 416.920(f)). Accordingly, the ALJ denied plaintiffs application for DIB.

         DISCUSSION

         Plaintiff asserts that this case should be reversed and remanded for an immediate payment of benefits. Plaintiff claims the ALJ erred by: (1) considering only evidence dated between the alleged onset date and the DLI in determining plaintiffs disability; (2) concluding that plaintiffs conditions did not meet or equal to the criteria of the listing on and before the DLI; (3) finding that plaintiff had worked at the SGA level between 1996-1999; (4) failing to give substantial weight to the opinions of Drs. Sacks and Alvord, and Mr, Weaver of Vocational Rehabilitation Department ("VRD"); (5) discrediting plaintiffs testimony; and (6) failing to include all the limitations associated with plaintiffs traumatic brain injury in assessing the RFC.

         The Commissioner concedes that the ALJ's decision contains legal errors. However, the Commissioner asserts that because there are outstanding issues requiring resolution by the ALJ, and it is not clear that the evidence would establish disability, the case should be remanded for further proceedings instead of an immediate payment of benefits. Thus, the only question before me is ...


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