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GONZALEZ v. BARNHART

December 16, 2005.

MARGARITA GONZALEZ, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of the Social Security Administration, Defendant.



The opinion of the court was delivered by: MARILYN HUFF, District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
[Doc. Nos. 11 & 16.]
Plaintiff Margarita Gonzalez ("Plaintiff") brings this action pursuant to § 405(g) of the Social Security Act ("Act") to obtain judicial review and remedy of the final decision of the Commissioner of the Social Security Administration (hereinafter "Defendant") in a claim for Supplemental Security Income benefits under Title XVI of the Act. The motion is submitted on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1). After careful consideration of the papers, the administrative record and the applicable law, the Court DENIES Plaintiff's motion for summary judgment and GRANTS Defendant's cross-motion for summary judgment.

Procedural History

  Plaintiff filed an application for supplemental security income benefits on May 23, 1994. (Administrative Record ("R") at 93-105.) She alleged that she was disabled due to allergies, leg, back and shoulder pain. (Id. at 94.) Her claim for benefits was denied at both the initial and reconsideration levels. (Id. at 112.) An Administrative Law Judge ("ALJ") held a hearing on March 25, 1998. (Id. at 547.) On July 13, 1998, the ALJ denied Plaintiff's application. (Id. at 189-98.) On September 29, 2000, the Appeals Council initially denied Plaintiff's request for review. (Id. at 200-01.)

  Meanwhile, on October 18, 1999, Plaintiff filed another application for Supplemental Security Income benefits where she alleged she was disabled as of July 21, 1989. (Id. at 249-53.) She alleges she was disabled due to "lumbar problem[s] and complication[s] due to injury." (Id. at 257.) An ALJ held a hearing on February 20, 2002. (Id. at 585.)

  On July 12, 2002, upon Plaintiff's request for reconsideration, the Appeals Council remanded the March 25, 1998 ALJ decision and consolidated Plaintiff's May 23, 1994 and October 18, 1999 applications. (Id. at 42-45; 205.)

  On August 12, 2003, a hearing was held before an ALJ. (Id. at 614.) On October 24, 2003, the ALJ issued a decision denying Plaintiff's consolidated application. (Id. at 22-29.) Plaintiff subsequently sought review by the Appeals Council. (Id. at 14.) On March 3, 2005, the Appeals Council denied review of the ALJ's decision. (Id. at 9.) The ALJ's decision then became the final decision of the Commissioner of Social Security. (Id.)

  On April 4, 2005, Plaintiff filed a civil complaint in this Court seeking to obtain judicial review of the final decision of the Commissioner. Defendant filed an answer on July 20, 2005. On October 13, 2005, Plaintiff filed a motion for summary judgment and on November 18, 2005, Defendant filed an opposition and cross-motion for summary judgment. On December 6, 2005, Plaintiff filed a reply and opposition to Defendant's motion for summary judgment. Factual Background

  Plaintiff was born on February 6, 1955 and has a limited education*fn1 and limited ability to speak and understand English. (Id. at 122, 251, 263, 554, 616.) She has past work experience as a janitor/maintenance worker in 1989. (Id. at 23.) She had an injury at work on October 13, 1987 and hurt her lower back, left leg and neck. (Id. at 555.) Plaintiff stated she has been disabled since June 23, 1989. (Id. at 144, 154.) On July 29, 1994, she had neck and back pain from a slip and fall accident. (Id. at 153-54.) In August 1999, she was treated in an emergency room for left hip pain following a car accident. (Id. at 334.)

  Plaintiff testified that she owns a vehicle and has a driver's license. (Id. at 620.) She receives food stamps and general relief. (Id. at 620-21.) She testified that she cannot work because she has headaches, nausea, stomach and vision problems, pain in both legs, waist, back and arms. (Id. at 621-23.) She makes breakfast for herself and her daughter and does some house chores. (Id. at 624-25.) She attends church functions about four days a week and goes grocery shopping. (Id. at 625.) She states she can lift five or six pounds, can stand for 20 minutes and sit for 20-25 minutes before changing positions. (Id. at 627.)

  ALJ's Findings

  The ALJ found that Plaintiff has not engaged in substantial gainful activity since the alleged onset of disability. (Id. at 28.) He concluded that her hearing and visual impairments do not constitute severe impairments. (Id. at 24.) He determined that Plaintiff's low back disorder and cervical spine disorder are severe impairments but do not meet the impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. (Id. at 24, 28.) The ALJ rejected Plaintiff's allegations of her limitations as not credible. (Id. at 29.) The ALJ concluded that Plaintiff has the residual functional capacity for light level functioning on a routine and sustained basis. (Id.) Based on Plaintiff's residual functional capacity, age, education, and work experience, the ALJ concluded that Plaintiff was "not disabled" as directed by Medical-Vocational Rule 202.16. (Id.) In conclusion, the ALJ assessed that Plaintiff was not under a "disability" as defined in the Social Security Act. (Id.)

  Discussion

  A. Standard of Review

  Section 205(g) of the Act allows unsuccessful applicants to seek judicial review of a final agency decision of the Commissioner. 42 U.S.C.A. § 405(g). The Commissioner's denial of benefits "will be disturbed only if it is not supported by substantial evidence or is based on legal error." Brawner v. Secretary of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (citing Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)).

  Substantial evidence means "more than a mere scintilla" but less than a preponderance. Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). "[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusions. Id. If the evidence supports more than one rational interpretation, the court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). "[Q]uestions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

  B. Analysis

  To qualify for disability benefits under the Act, an applicant must show that: (1) he or she suffers from a medically determinable impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of twelve months or more, and (2) the impairment renders the applicant incapable of performing the work that the applicant previously performed and incapable of performing any other substantially gainful employment that exists in the national economy. 42 U.S.C.A. § 423(d). The claimant's impairment must result from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

  The Social Security Regulations (hereinafter "regulations") employ a five step process to determine whether an applicant is disabled under the Act. See 20 C.F.R. § 404.1520. If an applicant is found to be "disabled" or "not disabled" at any step, there is no need to proceed to the subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The applicant bears the burden of proof as to the first four steps. Id. at 1098. If the fifth step is reached, the burden shifts to the Commissioner. Id. The five steps are as follows:
Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is "not disabled" within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant's case cannot be resolved at step one and the evaluation proceeds to step two.
Step 2. Is the claimant's impairment severe? If not, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant's impairment is severe, then the claimant's case cannot be resolved at step two and the evaluation proceeds to step three.
Step 3. Does the impairment "meet or equal" one of a list of specific impairments described in the regulations? If so, the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant's case cannot be resolved at step three and the evaluation proceeds to step four.
Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at step four and the evaluation proceeds to the fifth and final step.
Step 5. Is the claimant able to do any other work? If not, then the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in "significant numbers" in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines. . . . If the Commissioner meets this burden, the claimant is "not disabled" and therefore not entitled to disability insurance benefits. If the Commissioner cannot meet this burden, then the claimant is "disabled" and therefore entitled to disability insurance benefits.
Id. at 1098-99 (footnotes and citations omitted).

  C. Whether Plaintiff's Visual and Hearing Impairments Are Severe and Whether Plaintiff's Impairments Meet or Equal a Listing

  Plaintiff argues that the ALJ erred in concluding that Plaintiff's visual and hearing impairments are not severe and that Plaintiff's impairments do not meet or equal a Listing. (R. at 24, 28.)

  1. Severe Impairments

  At the second step, the inquiry is a de minimis screening device to dispose of groundless claims. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Plaintiff bears the burden to establish that he has a severe impairment. Tackett, 180 F.3d at 1098. An impairment is "not severe if it does not significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1521(a), 416.921(a). Basic work activities are abilities required to do most jobs, including, for example, walking, standing, lifting, pushing, understanding, carrying out and remembering simple instructions, ...


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