DARLENE K. GINTER, Plaintiff,
CAROLYN W. COLVIN. Commissioner of Noted for June 7, 2013 Social Security,  Defendant.
REPORT AND RECOMMENDATION
KAREN L. STROMBOM, Magistrate Judge.
Plaintiff has brought this matter for judicial review of defendant's partially favorable decision regarding her applications for disability insurance and supplemental security income ("SSI") benefits. This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule MJR 4(a)(4) and as authorized by Mathews, Secretary of H.E.W. v. Weber , 423 U.S. 261 (1976). After reviewing the parties' briefs and the remaining record, the undersigned submits the following Report and Recommendation for the Court's review, recommending that for the reasons set forth below, defendant's should be reversed and this matter should be remanded for further administrative proceedings.
FACTUAL AND PROCEDURAL HISTORY
On April 5, 2004, plaintiff filed an application for SSI benefits and on April 14, 2004, she filed another one for disability insurance benefits, alleging in both applications that she became disabled beginning August 15, 2000. See Administrative Record ("AR") 635. Both applications were denied upon initial administrative review on October 13, 2004, and on reconsideration on February 9, 2005. See id. A hearing was held before an administrative law judge ("ALJ") on July 18, 2007, at which plaintiff, represented by counsel, appeared and testified, as did a vocational expert. See AR 803-41.
In a decision dated August 3, 2007, the ALJ determined plaintiff to be not disabled. See AR 635-47. On December 21, 2007, plaintiff's request for review of that decision was granted by the Appeals Council, which remanded the matter for further administrative proceedings. See AR 653-56. A second hearing was held before a different ALJ on August 13, 2008, at which plaintiff, represented by counsel, appeared and testified, as did a different vocational expert. See AR 842-76. In a decision dated September 16, 2008, that ALJ also determined plaintiff to be not disabled. See AR 29-38.
Plaintiff's request for review of this second decision was denied by the Appeals Council on January 21, 2010, making the ALJ's decision the final decision of the Commissioner of Social Security (the "Commissioner"). See AR 8; see also 20 C.F.R. § 404.981, § 416.1481. Plaintiff sought judicial review of the Commissioner's final decision in this Court, which on February 4, 2011, remanded this matter to the Commissioner again for further administrative proceedings. See AR 900-14. On remand, a third hearing was held before a third different ALJ on January 24, 2012, at which plaintiff once more appeared but did not testify, and at which a third different vocational expert also appeared and testified. See AR 919-39.
In a decision dated March 28, 2012, that ALJ determined plaintiff to be not disabled prior to May 1, 2007, but became disabled beginning on that date. See AR 881-97. It does not appear that the Appeals Council assumed jurisdiction of the case this time. See 20 C.F.R. § 404.984, § 416.1484. The ALJ's decision therefore became the Commissioner's final decision after sixty days. Id . On June 14, 2012, plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's final decision. See ECF #3. The administrative record was filed with the Court on August 20, 2012. See ECF #14. The parties have completed their briefing, and thus this matter is now ripe for the Court's review.
Plaintiff argues the ALJ's decision should be reversed and remanded to defendant for a finding of disability and award of benefits, or in the alternative for further administrative proceedings, because the ALJ erred (1) in inferring an onset date of disability without calling a medical expert, and (2) in failing to properly evaluate the May 21, 2007 opinion of Susan Powell, M.D. The undersigned agrees the ALJ erred as alleged by plaintiff, but recommends for the reasons set forth below that this matter be remanded for further administrative proceedings rather than a finding of disability and award of benefits.
The determination of the Commissioner that a claimant is not disabled must be upheld by the Court, if the "proper legal standards" have been applied by the Commissioner, and the "substantial evidence in the record as a whole supports" that determination. Hoffman v. Heckler , 785 F.2d 1423, 1425 (9th Cir. 1986); see also Batson v. Commissioner of Social Security Admin. , 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v. Sullivan , 772 F.Supp. 522, 525 (E.D. Wash. 1991) ("A decision supported by substantial evidence will, nevertheless, be set aside if the proper legal standards were not ...