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Gabree v. Astrue

April 27, 2009



This social security action was submitted to the court without oral argument for ruling on plaintiff's motion for summary judgment and/or remand, and defendant's cross-motion for summary judgment. For the reasons explained below, plaintiff's motion is granted, the decision of the Commissioner of Social Security (Commissioner) is reversed, and the matter is remanded with the direction to award benefits.


Plaintiff Julie M. Gabree applied for Disability Insurance Benefits under Title II of the Social Security Act (Act) on June 3, 2004, alleging disability beginning on August 21, 2002 due to herniated disc, degenerative hip, and anxiety. (Transcript (Tr.) at 62-64.) The application was denied initially on September 22, 2004, and upon reconsideration on January 10, 2005. (Tr. at 26-27, 36.)

Pursuant to a timely request made by plaintiff's attorney, a hearing was held before an administrative law judge (ALJ) on November 10, 2005. (Tr. at 42, 291-358.) Plaintiff testified at the hearing, as did her husband and a vocational expert. In a decision dated September 25, 2006, the ALJ entered the following findings:

1. Claimant filed an application for a period of disability and disability insurance benefits on June 3, 2004, alleging disability from August 21, 2002.

2. Claimant met the disability insured status requirements of the Act on August 21, 2002, his [sic] alleged onset date, and continues to meet those requirements through September 30, 2007.

3. Claimant has not performed SGA [substantial gainful activity] since August 21, 2002.

4. The medical evidence establishes that claimant has the severe impairments of degenerative disc disease of the cervical and lumbar spines and anxiety disorder with depression.

5. Claimant's severe impairments do not meet or equal any listed impairment of Appendix 1, Subpart P of Social Security Administration Regulation No. 4.

6. Claimant has an RFC for a range of work at the sedentary exertional level with the ability to lift up to 10 pounds occasionally, stand/walk two to four hours per day, up to 30 minutes at a time, sit four to six hours per day sitting with the need to stretch every 45 minutes, occasionally climb, crouch, stoop, bend at the waist and crawl and frequently kneel with preclusion from working in high humidity or temperature extremes. In addition, non-exertionally, claimant has a mild limitation in the ability to maintain concentration, persistence and pace (up to 15% of the time) and a mild limitation in social functioning (up to 15% of the time).

7. Claimant's subjective complaints are not fully credible. 8. Claimant is presently a 46-year-old individual with a GED and vocationally relevant past work experience as a USPS mail carrier during the last 15 relevant years.

9. Considering the above RFC, claimant cannot perform past relevant work.

10. Considering the above RFC and vocational characteristics, the vocational expert identified other jobs that exist in significant numbers in this and other regions of the United States that plaintiff can perform. Cited jobs include masker, shade assembler and agricultural sorter.

11. Pursuant to 20 C.F.R. § 404.1520(g), claimant is not and has not been under a "disability" as that term is defined in the Social Security Act, as amended, at any time through the date of this decision. (Tr. at 22-23.)

On February 23, 2007, the Appeals Council denied plaintiff's request for administrative review of the ALJ's decision. (Tr. at 6-9, 12-14.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the complaint in this action on April 13, 2007.


The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record as a whole and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Morgan, 169 F.3d at 599); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

A reviewing court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion. Jones, 760 F.2d at 995. The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or non-disability, the finding of the ALJ is conclusive, Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

In determining whether or not a claimant is disabled, the ALJ should apply the five-step sequential evaluation process established under Title 20 of the Code of Federal Regulations, Sections 404.1520 and 416.920. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step process has been summarized in the Ninth Circuit as follows:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically ...

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