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Ee v. Berryhill

United States District Court, C.D. California

February 15, 2017

DANIEL GENEWOO EE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER OF REMAND

          CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE.

         Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied, and this matter is remanded for further administrative action consistent with this Opinion.

         PROCEEDINGS

         Plaintiff filed this action on August 8, 2016, seeking review of the Commissioner's denial of benefits. The parties consented to a Magistrate Judge on September 21, 2016. Plaintiff filed a motion for summary judgment on December 15, 2016. Defendant filed a motion for summary judgment on January 17, 2017. The Court has taken both motions under submission without oral argument. See L.R. 7-15; “Order, ” filed August 15, 2016.

         BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

         Plaintiff, a veteran who served as a tank gunner in Iraq, asserts disability since April 24, 2008 (the date his military service ended) due to lower back problems and post traumatic stress disorder (“PTSD”) (Administrative Record (“A.R.”) 56-57, 156, 179, 203). An Administrative Law Judge (“ALJ”) examined the medical record and heard testimony from Plaintiff, Plaintiff's wife, a medical expert (psychiatrist), and a vocational expert (A.R. 16-32, 37-91, 331-2125).

         The ALJ found that Plaintiff suffers from the following severe impairments: PTSD, cognitive disorder, polysubstance abuse in remission, psychosis (not otherwise specified, likely substance induced), obesity, and a lumbar spine disorder (A.R. 19). The ALJ determined that Plaintiff has the residual functional capacity to perform a limited range of medium work (A.R. 21-30).[1] The ALJ found that a person with this capacity could work as a hand packager, hospital cleaner, or industrial cleaner -- jobs existing in significant numbers in the national economy (A.R. 31-32 (adopting vocational expert testimony at A.R. 87-89)). The Appeals Council denied review (A.R. 1-3).

         STANDARD OF REVIEW

         Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).

         DISCUSSION

         Plaintiff asserts, inter alia, that the ALJ materially erred in connection with the ALJ's consideration of disability ratings by the Department of Veterans Affairs (“VA”). The Court agrees. Remand for further administrative proceedings is appropriate.

         I. Plaintiff's Post-Military Schooling and Work Attempt

         Plaintiff has been attending school during most of the time Plaintiff claims to have been disabled (A.R. 57-58). During 2009-14, Plaintiff received a bachelor's degree in philosophy from Chapman University and a master's degree in social work from the University of Southern California (A.R. 50-51, 57-58).[2] At the administrative hearing, Plaintiff said he had been accepted into chiropractic school for the fall of 2016 (A.R. 67-68).[3]

         It appears that Plaintiff's only full-time work attempt since his military discharge was a five-month trial after he finished his master's degree. Plaintiff worked for the Social Security Administration as a claims representative in training from September 2014 through January 20, 2015 (A.R. 51-52, 203-04). Plaintiff was fired after a hospitalization earlier that month for psychosis following the use of methamphetamine (discussed below) (A.R. 52).

         II. Plaintiff's PTSD, Admitted Drug Use and ...


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