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Carey v. Colvin

United States District Court, Ninth Circuit

December 12, 2013

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Linda S. Ziskin, Las Vegas, NV, Attorney for Plaintiff.

S. Amanda Marshall, United States Attorney, District of Oregon,

Adrian L. Brown, Assistant United States Attorney, Portland, OR,

Franco L. Becia, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, Seattle, WA, Attorneys for Defendant.


GARR M. KING, District Judge.

Plaintiff Erricka Carey 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 a period of disability and disability insurance benefits ("DIB"). I reverse the decision of the Commissioner and remand for further proceedings.


Carey filed an application for DIB on June 1, 2010, alleging disability beginning April 30, 2007. The application was denied initially and upon reconsideration. After a timely request for a hearing, Carey, represented by counsel, appeared and testified before an Administrative Law Judge ("ALJ") on December 1, 2011.

On December 12, 2011, the ALJ issued a decision finding Carey was not disabled within the meaning of the Act and therefore not entitled to benefits. This decision became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ on June 22, 2012.


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) and 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) and 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 ALJ. The claimant has the burden of proof on the first four steps. Molina v. Astrue , 674 F.3d 1104, 1110 (9th Cir. 2012); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ determines whether the claimant is engaged in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b) and 416.920(b). 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) and 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) and 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, a finding of "not disabled" is made and disability benefits are denied. 20 C.F.R. §§ 404.1520(f) and 416.920(f).

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. Molina , 674 F.3d at 1110. The claimant is entitled to disability benefits only if he is not able to perform other work. 20 C.F.R. §§ 404.1520(g) and 416.920(g).


The court must affirm a denial of benefits if the denial is supported by substantial evidence and is based on correct legal standards. Molina , 674 F.3d at 1110. 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 identified migraine headaches, depression, anxiety, obesity and chronic lumbar sprain as Carey's severe impairments. The ALJ found these impairments, either singly or in combination, do not meet or medically equal the requirements of any of the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1. Carey can perform sedentary work, with the added ability of standing and walking up to four hours in an eight-hour day, rather than just two. She can lift and carry ten pounds frequently and twenty pounds occasionally. She has non-exertional limitations preventing her from climbing ladders, ropes, or scaffolds, but she can occasionally climb ramps and stairs, and can balance, stoop, kneel, crouch, crawl and reach overhead. She needs to sit and stand at will, approximately every 45 minutes. She should avoid concentrated exposure to hazards. She is limited to unskilled work and routine tasks involving only superficial interaction with the general public and co-workers with no close cooperation or coordination.

Given this residual functional capacity ("RFC"), the ALJ concluded Carey could not perform her past work as a barista, child care provider, cashier, store laborer, retail manager, or a weather officer. However, based on the testimony of a vocational expert ("VE"), the ALJ found Carey could perform work as a small products assembler, electronics worker, and office helper.


Carey was 32 years old on the alleged disability onset date of April 30, 2007. She has a bachelor's degree and is a veteran, having served in the Air Force from 2000 to 2007. During those years, she was a weather officer, with duty stations in Mississippi, New Mexico and Alabama. While she was in officer's training in Missouri in 2003, she was in a vehicle accident in which she was rear-ended while at a complete stop and pushed into a car in front of hers. She did not work for one or two months while she recovered from the crash. She then served in Iraq as a weather officer on base for six months. After the car accident, Carey began experiencing lower back pain. She received chiropractic treatments and traction, which helped. She was honorably discharged in 2007 "due to her injuries" when the "military started doing cutbacks." Tr. 261. Carey receives benefits from the Department of Veterans Affairs for a combined service connected rating of 80 percent, with a 100 percent payment rate as a result of a finding that she is unemployable due to these service-connected disabilities. She spends ...

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