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Pekarek v. Colvin

United States District Court, E.D. California

February 11, 2015

DWAYNE TODD PEKAREK, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

ORDER

DALE A. DROZD, Magistrate Judge.

This social security action was submitted to the court without oral argument for ruling on plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment. For the reasons explained below, plaintiff's motion is granted, defendant's cross-motion is denied, the decision of the Commissioner of Social Security ("Commissioner") is reversed, and the matter is remanded for further proceedings consistent with this order.

PROCEDURAL BACKGROUND

On January 29, 2010, plaintiff filed an application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("the Act") alleging disability beginning on January 1, 2010. (Transcript ("Tr.") at 152-72.) Plaintiff's application was denied initially, (id. at 97-101), and upon reconsideration. (Id. at 105-09.) Thereafter, plaintiff requested an administrative hearing and a hearing was held before an Administrative Law Judge ("ALJ") on July 21, 2011. (Id. at 33.) Plaintiff was represented by an attorney and testified at the administrative hearing. (Id. at 33-34.) In a decision issued on August 26, 2011, the ALJ found that plaintiff was not disabled. (Id. at 27.)

The ALJ entered the following findings:

1. The claimant has not engaged in substantial gainful activity since January 25, 2010, the application date (20 CFR 416.971 et seq. ).
2. The claimant has the following severe impairments: morbid obesity, lumbago, cervicalgia, right eye visual impairment, borderline intellectual functioning, anxiety disorder, and personality disorder (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) except he can only occasionally climb, stoop, kneel, crouch, crawl, or have contact with the public; can frequently balance; should avoid concentrated exposure to extreme cold and excessive vibration; and can perform work that requires no detailed vision (no fine detailed work) or high volume production line work with mandatory quotas and only simple English skills with no complex, technical or scientific instructions and simple repetitive tasks.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on August 31, 1965 and was 44 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since January 25, 2010, the date the application was filed (20 CFR 416.920(g)).[1]

(Id. at 21-27.)

On May 21, 2013, the Appeals Council denied plaintiff's request for review of the ALJ's August 26, 2011 decision. (Id. at 1-3.) Plaintiff sought judicial review pursuant to 42 U.S.C. ยง 405(g) by filing the complaint in this action on July 19, 2013.

LEGAL STANDARD

"The district court reviews the Commissioner's final decision for substantial evidence, and the Commissioner's decision will be disturbed only if it is not supported by substantial evidence or is based on legal error." Hill v. Astrue , 698 F.3d 1153, 1158-59 (9th Cir. 2012). 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); Sandgathe v. Chater , 108 F.3d 978, 980 (9th Cir. 1997).

"[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.'" Robbins v. Soc. Sec. Admin. , 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen , 879 F.2d 498, 501 (9th Cir. 1989)). If, however, "the record considered as a whole can reasonably support either affirming or reversing the ...


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