United States District Court, D. Oregon, Portland Division
DAVID D. M., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
Aiken United States District Judge
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
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.
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
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).
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).
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).
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.
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.
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 ...