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Victor Bear v. Michael J. Astrue

June 30, 2011

VICTOR BEAR, 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 FOR IMMEDIATE PAYMENT OF BENEFITS

I. SUMMARY

On December 7, 2010, plaintiff Victor Bear ("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; January 31, 2011 Case Management Order, ¶ 5.

Based on the record as a whole and the applicable law, and for the reasons discussed below, the decision of the Commissioner is REVERSED AND REMANDED for immediate payment of benefits.

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION On May 3, 2004, plaintiff filed an application for Disability Insurance

Benefits. (Administrative Record ("AR") 52-54). Plaintiff asserted that he became disabled on February 28, 2003, due to "[s]houlder/wrists and left knee injury." (AR 52, 57). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel), a medical expert and a vocational expert on April 5, 2006 ("Pre-Remand Hearing"). (AR 329-55).

On July 27, 2006, the ALJ determined that plaintiff was not disabled through the date of the decision ("Pre-Remand Decision"). (AR 13-14). The Appeals Council denied plaintiff's application for review of the Pre-Remand Decision. (AR 5).

On March 24, 2008, in Case No. SACV 07-33 JC, a judgment was entered in the United States District Court for the Central District of California, reversing and remanding the case for further proceedings because the ALJ improperly disregarded testimony plaintiff gave at the Pre-Remand hearing regarding plaintiff's subjective symptoms (i.e., pain) ("2008 Remand Order"). (AR 458-61). The Appeals Council, in turn, remanded the case for a new hearing. (AR 446). On April 8, 2009, the ALJ held a supplemental hearing ("Post-Remand Hearing") during which the ALJ heard additional testimony from plaintiff, as well as testimony from the same medical and vocational experts who testified at the PreRemand Hearing. (AR 691). During the Post-Remand Hearing, plaintiff amended his application to allege only a closed period of disability from February 28, 2003 through March 30, 2008 ("closed period of disability"). (AR 368, 712-13).

On August 25, 2009, the ALJ issued another decision ("Post-Remand Decision"), incorporating by reference the Pre-Remand Decision, and supplementing such decision. (AR 368). The ALJ determined that plaintiff was not disabled for the alleged closed period of disability. (AR 379). Specifically, the ALJ found that for the closed period of disability (i.e., February 28, 2003 through March 30, 2008): (1) plaintiff suffered from the following severe impairments: left knee impairment (condomalaysya and early degenerative changes)/status post-surgical repair in 1997; right carpal tunnel syndrome/median nerve damage/possible ulnar nerve impairment; right shoulder impingement with some osteoarthritis; and disorder of the cervical and lumbar spine (AR 371); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 371); (3) plaintiff retained the residual functional capacity to perform light work (20 C.F.R. §§ 404.1567(b)) with significant additional limitations (AR 372); (4) plaintiff could not perform his *fn1 past relevant work (AR 377); (5) there are jobs that exist in significant numbers in the national economy that plaintiff could perform, specifically Cashier II, Information Clerk, Dowel Inspector, and Call Out Operator (AR 378); and (6) plaintiff's allegation the he was unable to perform any type of work during the closed period of disability was less than fully credible (AR 377).

The Appeals Council again denied review. (AR 356).

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 claimant 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. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit claimant's ability to work? If not, the claimant is not ...


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