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Ader v. Commissioner of Social Security Administration

United States District Court, D. Arizona

December 7, 2017

Michelle L. Ader, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          David K. Duncan, United States Magistrate Judge.

         Plaintiff Michelle L. Ader appeals from the denial of her application for benefits from the Social Security Administration. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and, with the parties' consent to Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c). As detailed below, the Court concludes that the ALJ's decision contained legal errors and so a remand for an award of benefits is appropriate.

         Time Frame.

         In this matter, the relevant time period is finite and begins on the alleged onset date of October 1, 2010, and ends when Ader's Title II disability insurance benefits ended on March 30, 2014.[1] (Tr. 39) As a result, Ader's burden is to show that she was disabled before March 30, 2014. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998); Lombardo v. Schweiker, 749 F.2d 565, 567 (9th Cir. 1984).

         Standard of Review

         This court must affirm the ALJ's findings if they are supported by substantial evidence and are free from reversible error. Marcia v. Sullivan, 900 F.2d 172, 174 (9thCir. 1990). 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.” Richardson v. Perales, 402 U.S. 389, 401 (1971). In determining whether substantial evidence supports the ALJ's decision, the court considers the record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1988). The ALJ is responsible for resolving conflicts, ambiguity, and determining credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Thus, the Court must affirm the ALJ's decision where the evidence considered in its entirety substantially supports it and the decision is free from reversible error. 42 U.S.C. § 405(g); Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989).


         Ader, proceeding pro per, raises several related challenges to the ALJ's decision. (Docs. 25, 30)

         Psychological Consultative Evaluation.

         Ader was evaluated at the request of the State agency by Renee Behinfar, Psy.D. (Tr. 575-80) In her subsequent written report, Dr. Behinfar concluded that Ader had unspecified bipolar disorder and unspecified anxiety disorder. (Tr. 577) This conclusion is uncontroverted. (Tr. 37-47) In her opinion, the ALJ gave Dr. Behinfar's opinion “little weight.” The relevant paragraph of ALJ decision states as follows:

Little weight is afforded to the opinion of the Consultative Examiner Renee Behinfar, Psy.D. who concluded the claimant would have cognitive limitations from her mental impairments. (8F) Specifically, the examiner concluded the claimant could understand simpl1e instructions and would require greater than average time to adapt. (8F) The undersigned finds the opinion is inconsistent with and unsupported by the evidence. The claimant got married and had two children during the alleged disability period. She raises the two minor children in her household, drives independently, can attend to personal care limited only by physical impairments, shops for groceries, can watch television without reported difficulty in understanding and following story/plot-lines, was cooperative during her examinations with consultative examiners and is not in any formal mental health treatment (See Exhibits 5E, 8F, 9F, 10F). Further, the claimant has never been hospitalized due to severe decline in mental health. The foregoing suggests a level of cognitive ability inconsistent with the opinion of Dr. Behinfar, accordingly, the opinion is afforded little weight.

(Tr. 41)

         To assign little weight to Dr. Behinfar's uncontroverted opinion, the ALJ needed to provide “‘clear and convincing' reasons for doing so.” Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (citations omitted). The Court has reviewed the relevant portions of the record and concludes that the ALJ has not provided clear and convincing reasons for rejecting Dr. Behinfar's opinion.

         The ALJ's first series of justifications-Ader's marital status and her ability to drive, shop, watch television, and cooperate with examiners-do not show that Ader can work and instead fall squarely into the category of daily activities that do “not in any way detract from her credibility as to her overall disability. One does not need to be ‘utterly incapacitated' in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. ...

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