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Berry v. Astrue

August 25, 2010

JOSHUA T. BERRY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

I. SUMMARY

On July 27, 2009, plaintiff Joshua Berry ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; July 30, 2009 Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum and Opinion and Order of Remand.

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff filed applications for Supplemental Security Income benefits and Disability Insurance Benefits on or about September 29, 2003. (Administrative Record ("AR") 15, 187-89, 336-38). Plaintiff asserted that he became disabled on June 1, 2002, because he was partially sighted since birth. (AR 197). The Administrative Law Judge ("ALJ") examined the medical record and held three hearings. (AR 24-114). At the first hearing, on September 14, 2005, the ALJ heard testimony from a medical expert, a vocational expert, and plaintiff, but plaintiff's counsel was not present. (AR 24-50). Plaintiff's counsel was present for the next two hearings, on December 21, 2005, and June 7, 2007, at which a medical expert, a vocational expert, and plaintiff testified. (AR 51-114).

On June 15, 2007, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 15-21). Specifically, the ALJ found:

(1) plaintiff suffered from the severe impairment of congenital nystagmus (AR 17); (2) plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments (AR 18); (3) plaintiff retained the residual functional capacity to perform "an unlimited range of exertional work" with certain non-exertional limitations (AR 18);*fn1 (4) plaintiff could perform his past relevant work (AR 20); and (5) plaintiff's allegations regarding his limitations were not entirely credible. (AR 19).

The Appeals Council denied plaintiff's application for review. (AR 6-8).

III. APPLICABLE LEGAL STANDARDS

A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that he is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. ...


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