United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATIONS
Johnston, United States Magistrate Judge
Charles Alan Gutierrez (Gutierrez) brought this action to
obtain judicial review of the final decision of the Acting
Commissioner of the Social Security Administration
(Commissioner), denying his application for disability and
disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§401-433.
Court possesses jurisdiction over this action under 42 U.S.C.
§ 405(g). Venue is proper given that Gutierrez resides
in Cascade County, Montana. 29 U.S.C. § 1391(e)(1); L.R.
1.2(c)(3). United States District Judge Brian Morris referred
this matter to the undersigned to submit findings and
recommendations on all dispositive motions. (Doc. 8).
is 57 years old. (Doc. 5 at 217). Gutierrez is a
well-educated person. Gutierrez possesses an associates
degree in applied science, a bachelor's degree in
political science, and a master's degree in international
relations. (Doc. 5 at 42). Gutierrez has past work experience
as a military operations commander and as a operational
intelligence officer in the United States Air Force. (Doc. 5
at 24). The Veterans Administration (VA) determined on
November 21, 2014, that Gutierrez was 70% disabled as of
September 30, 2013, due to military service related
impairments. (Doc. 5 at 210). These impairments included
Post-Traumatic Stress Disorder (PTSD), major depressive
disorder, cognitive disorder, and essential tremor and
movement disorder in his right hand. (Doc. 5 at 210, 213-14,
238). The VA declared Gutierrez unemployable as of September
30, 2014. (Doc. 5 at 210, 214, 238). Gutierrez receives VA
disability benefits. Id.
filed his application for social security disability benefits
on December 31, 2015. (Doc. 5 at 217-218). Gutierrez alleged
that he became disabled on June 1, 2006, due to PTSD, a
traumatic brain injury, anxiety and depressive disorder.
(Doc. 5 at 98, 217). An administrative law judge (ALJ)
conducted a hearing on Gutierrez's application for social
security benefits on April 6, 2017. (Doc. 5 at 36-72). The
ALJ issued her decision on June 7, 2017. (Doc. 5 at 10-26).
The ALJ determined that Gutierrez did not qualify for
disability or disability insurance benefits. (Doc. 5 at 26).
requested that the Social Security Administration
(Administration) review the ALJ's decision. (Doc. 5 at
102). The Administration denied Gutierrez's request.
(Doc. 5 at 1-3). The Administration's denial made the
ALJ's decision the final decision of the Commissioner.
filed the present action on November 28, 2017. (Doc. 1). The
matter has been fully briefed. (Docs. 10, 16, 25, 26, 27).
The Court is prepared to rule.
Court's review in this matter is limited. The Court may
set aside the Commissioner's decision only where the
decision is not supported by substantial evidence or where
the decision is based on legal error. Bayliss v.
Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir. 2005).
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). Substantial evidence has also been described
as "more than a mere scintilla" but "less than
a preponderance." Desrosiers v. Sec. of Health and
Human Services, 846 F.2d 573, 576 (9th Cir. 1988).
claimant is disabled for purposes of the Social Security Act
if the claimant demonstrates by a preponderance of the
evidence that (1) the claimant has 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 not less than
twelve months;" and (2) the impairment or impairments
are of such severity that, considering the claimant's
age, education, and work experience, the claimant is unable
to perform previous work and is also unable to "engage
in any other kind of substantial gainful work which exists in
the national economy." Schneider v. Comm V
of the Soc. Sec. Admin., 223 F.3d 968, 974 (9th Cir.
2000) (citing 42 U.S.C. §1382(a)(3)(A), (B)).
Social Security Administration regulations provide a
five-step sequential evaluation process for determining
whether a claimant is disabled. Bustamante v.
Massanari, 262 F.3d 949, 953-954 (9th Cir. 2001); 20
C.F.R. §§ 404.1520, 416.920. The claimant bears the
burden of proof under steps one through four.
Bustamante, 262 F.3d at 954. The Commissioner bears
the burden of proof under step five. Id. The five
steps of the inquiry are:
1. Is the claimant presently working in a substantially
gainful activity? If so, the claimant is not disabled within
the meaning of the Social Security Act. If not, proceed to
step two. See 20 C.F.R. §§ 404.1520(b),
2. Is the claimant's impairment severe? If so, proceed to
step three. If not, the claimant is not disabled.
See 20 C.F.R. §§ 404.1520(c), 416.920(c).
3. Does the impairment "meet or equal" one of a
list of specific impairments described in 20 C.F.R. Part 220,
Appendix 1? If so, the claimant is disabled. If not, proceed
to step four. See 20 C.F.R. §§
4. Is the claimant able to do any work that he or she has
done in the past? If so, the claimant is not disabled. If
not, proceed to step five. See 20 C.F.R.
§§ 404.1520(e), 416.920(e).
5. Is the claimant able to do any other work that exists in
the national economy? If so, the claimant is not disabled. If
not, the claimant is disabled. See 20 C.F.R.