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Cree v. Berryhill

United States District Court, D. Oregon

January 22, 2018

PAUL ERNEST CREE, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner, Social Security Administration, Defendant.

          SARA L. GABIN Attorney for Plaintiff

          BILLY J. WILLIAMS United States Attorney

          RENATA GOWIE Assistant United States Attorney

          Michael W. Pile Acting Regional Chief Counsel

          JOSEPH K. LANGKAMER Special Assistant United States Attorneys for Defendant

          OPINION AND ORDER

          ANNA J. BROWN United States Senior District Judge

         Plaintiff Paul E. Cree seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. This Court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

         For the reasons that follow, the Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion and Order.

         ADMINISTRATIVE HISTORY

         Plaintiff filed an application for SSI on November 24, 2014, alleging a disability onset date of April 15, 2010. Tr. 142.[2]The application was denied initially and on reconsideration. An Administrative Law Judge (ALJ) held a hearing on March 11, 2016. Tr. 49-114. Plaintiff was represented by an attorney at the hearing. Plaintiff and a vocational expert (VE) testified.

         The ALJ issued a decision on June 2, 2016, in which he found Plaintiff is not disabled and, therefore, is not entitled to benefits. Tr. 19-40. Pursuant to 20 C.F, R. § 416.984(d) that decision became the final decision of the Commissioner on August 3, 2016, when the Appeals Council denied Plaintiff's request for review. Tr. 1-3. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

         BACKGROUND

         Plaintiff was born on December 20, 1969, and was 46 years old at the time of the hearing. Tr. 116. Plaintiff graduated from high school and subsequently completed a real-estate course. Tr. 329. Plaintiff has past relevant work experience as a real-estate broker and leasing agent. Tr. 38.

         Plaintiff alleges disability due to attention deficit disorder (ADD)/attention deficit hyperactivity disorder (ADHD), bipolar disorder, depression, post-traumatic stress disorder (PTSD}, personality disorder, and degenerative disc disease. PL's Opening Br. at 2. See also Tr. 21-22, 116, 135.

         Except as noted, Plaintiff does not challenge the ALJ's summary of the medical evidence. After carefully reviewing the medical records, this Court adopts the ALJ's summary of the medical evidence. See Tr. 21-37.

         STANDARDS

         The initial burden of proof rests on the claimant to establish disability. Molina v. Rstrue, 674 F.3d 1104, 1110 (9thCir. 2012). To meet this burden, a claimant must demonstrate his inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The ALJ must develop the record when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. McLeod v. Astrue, 64 0 F.3d 881, 885 (9th Cir. 2011} (quoting Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)) .

         The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). See also Brewes v. Coram'r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Molina, 674 F.3d. at 1110-11 (quoting Valentine v. Comm'r Soc. Sec. Admin,, 574 F.3d 685, 690 (9th Cir. 2009)). "It is more than a mere scintilla [of evidence] but less than a preponderance." Id. (citing Valentine, 574 F.3d at 690).

         The ALJ is responsible for determining credibility, resolving conflicts in the medical evidence, and resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The court must weigh all of the evidence whether it supports or detracts from the Commissioner's decision. Ryan v. Comm'r of Soc. Sec, 528 F.3d 1194, 1198 (9th Cir. 2008). Even when the evidence is susceptible to more than one rational interpretation, the court must uphold the Commissioner's findings if they are supported by inferences reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The court may not substitute its judgment for that of the Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).

         DISABILITY ANALYSIS

         I. The Regulatory Sequential Evaluation

         The Commissioner has developed a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). See also 20 C.F.R. § 416.920. Each step is potentially dispositive.

         At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(I). See also Keyser v. Comm'r of Soc. Sec. , 648 F.3d 721, 724 (9th Cir. 2011}.

         At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe impairment or combination of impairments. 20 C.F.R. §§ 416.909, 416.920(a) (4) (ii) . See also Keyser, 648 F.3d at 724.

         At Step Three the claimant is disabled if the Commissioner determines the claimant's impairments 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. § 416.920(a) (4) (iii) . See also Keyser, 648 F.3d at 724. The criteria for the listed impairments, known as Listings, are enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed Impairments) .

         If the Commissioner proceeds beyond Step Three, she must assess the claimant's residual functional capacity (RFC). The claimant's RFC is an assessment of the sustained, work-related physical and mental activities the claimant can still do on a regular and continuing basis despite his limitations. 20 C.F.R. § 416.920(e). See also Social Security Ruling (SSR) 96-8p. "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent schedule." SSR 96-8p, at *1. In other words, the Social Security Act does not require complete incapacity to be ...


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