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Gutierrez v. Berryhill

United States District Court, D. Montana, Great Falls Division

March 1, 2019

CHARLES ALAN GUTIERREZ, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          FINDINGS AND RECOMMENDATIONS

          John Johnston, United States Magistrate Judge

         INTRODUCTION

         Plaintiff 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.

         JURISDICTION

         The 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).

         BACKGROUND

         Gutierrez 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.

         Gutierrez 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).

         Gutierrez 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. Id.

         Gutierrez 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.

         STANDARD OF REVIEW

         The 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).

         BURDEN OF PROOF

         A 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)).

         The 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), 416.920(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. §§ 404.1520(d), 416.920(d).
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. ...

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