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Gregerson v. Commissioner of Social Security

United States District Court, Ninth Circuit

May 29, 2013

COMMISSIONER of Social Security, Defendant.

Alan Stuart Graf, P.C., Summertown, Tennessee, Attorney for Plaintiff.

S. Amanda Marshall, United States Attorney, District of Oregon. Adrian L. Brown, Assistant United States Attorney, Portland, Oregon. Jeffrey R. McClain, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Seattle, Washington, Attorneys for Defendant.


GARR M. KING, District Judge.

Plaintiff Regi M. Gregerson brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner denying plaintiff's application for disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"). I reverse the decision of the Commissioner and remand for further proceedings.


The Social Security Act (the "Act") provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security income benefits may be available to individuals who are age 65 or over, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a).

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 cause death or to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for either DIB or SSI due to disability. The evaluation is carried out by the Administrative Law Judge ("ALJ"). The claimant has the burden of proof on the first four steps. Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ determines whether the claimant is engaged in "substantial gainful activity." If the claimant is engaged in such activity, disability benefits are denied. Otherwise, the ALJ proceeds to step two and determines whether the claimant has a medically severe impairment or combination of impairments. A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied.

If the impairment is severe, the ALJ proceeds to the third step to determine whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant performed in the past. If the claimant is able to perform work she performed in the past, the ALJ makes a finding of "not disabled" and disability benefits are denied. 20 C.F.R. §§ 404.1520(e), 416.920(e).

If the claimant is unable to perform work performed in the past, the ALJ proceeds to the fifth and final step to determine if the claimant can perform other work in the national economy in light of his age, education, and work experience. The burden shifts to the Commissioner to show what gainful work activities are within the claimant's capabilities. Parra , 481 F.3d at 746. The claimant is entitled to disability benefits only if he is unable to perform other work. 20 C.F.R. §§ 404.1520(f), 416.920(f).


The court must affirm a denial of benefits if the denial is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue , 674 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" and is more than a "mere scintilla" of the evidence but less than a preponderance. Id . (internal quotation omitted). The court must uphold the ALJ's findings if they "are supported by inferences reasonably drawn from the record[, ]" even if the evidence is susceptible to multiple rational interpretations. Id.


The ALJ found Gregerson had severe impairments of subdural hematoma status post resection, cognitive disorder NOS, adjustment disorder with mixed anxiety and depressed mood, and ongoing alcohol abuse. The ALJ also found that these impairments, either singly or in combination, were not severe enough to meet or medically equal the requirements of any of the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1. After reviewing the record, the ALJ concluded Gregerson had the residual functional capacity to lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk two hours in an eight-hour workday, and sit six hours in an eight-hour workday. Gregerson cannot crawl or climb ladders, ropes, and scaffolds; can stoop, kneel, crouch, and climb stairs occasionally; can balance frequently; can understand, remember, and carry out short, simple instructions consistent with entry-level work; should have no more than occasional public contact; and should not drive as a required function of the job. Based on the vocational expert's testimony that Gregerson could work as a patcher, taper, or sorter, the ALJ found Gregerson was not disabled under the Act.


Gregerson alleges he became disabled on January 31, 2008 due to head trauma he suffered in 2002. The injury required emergency surgery to remove a blood clot from his brain. Gregerson, who was 45 years old at the time of the ALJ's decision, has a high school education and years of work experience as a door assembler, forklift operator, lumber mill worker, and glass cutter. At the time of the March 2011 hearing, Gregerson had lived at a rescue mission since August 2009; he previously abused alcohol but stopped drinking when he moved there. Gregerson sorts clothing at the mission for an hour or two a day, four days a week.

The brain injury caused several chronic problems. Gregerson claims to have numbness in his lower left leg which causes him to limp; migraine headaches every few months that are incapacitating for one to two days; difficulty with memory, concentration and following multi-step instructions; reduced hand-eye coordination causing shakiness when he attempts to pick up an object, and anxiety around people.

Because he had no funds and no insurance, the only medical treatment Gregerson received since 2002 are an emergency room visit for suicidal ideation in 2003 and two appointments at a community health clinic in March and April 2010. He takes ibuprofen for pain relief.


I. Gregerson's ...

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