The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT
On July 6, 2006, Danny K. Rolinson ("Plaintiff") filed a complaint pursuant to section 405(g) of the Social Security Act ("Act") requesting judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner" or "Defendant"), denying Plaintiff a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") benefits under Titles II and XVI, respectively, of the Act. (Doc. No. 1.) On February 28, 2008, Plaintiff filed a motion for summary judgment. (Doc. No. 14.) On April 7, 2008, Defendant filed a cross-motion for summary judgment and a response in opposition to Plaintiff's motion for summary judgment. (Doc. Nos. 17, 18.) Plaintiff filed a reply to Defendant's opposition on May 13, 2008. (Doc. No. 19.) On June 3, 2008, the parties filed a joint motion to supplement the administrative record to supply the Court with the complete text of the Administrative Law Judge's decision, one page of which was missing from the Administrative Record. (Doc. No. 20.) The Court granted that joint motion. (Doc. No. 21.)
For the following reasons the Court denies Plaintiff's motion for summary judgment and grants Defendant's cross-motion for summary judgment.
Plaintiff is a 51 year old male with a high school education. (Administrative Record ("AR") 19.) His past work experience includes employment as a janitor and operating room aide. (AR 19.) Plaintiff alleges that he became disabled in July, 2002 because of asthma, high blood pressure, cardiomegaly, leg pain, cysts and depression. (AR 19, 30.) Plaintiff initially filed applications for DIB and SSI payments on May 21, 2004. (AR 18.) Defendant denied his claim initially and upon reconsideration on July 9, 2004 and again on December 17, 2004. (AR 30-40.) On February 16, 2005, Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"). (AR 41.)
The hearing before the ALJ took place on October 24, 2005. (AR 25.) The ALJ followed the five-step sequential evaluation process for determining disability:
(1) evaluate recent gainful work activity; (2) determine medical severity of impairment(s); (3) determine whether impairment(s) meet or equal the duration and listing requirements of the Act; (4) assess residual functional capacity and determine whether claimant can perform previous work; (5) if claimant is disabled at steps 1-4, the burden shifts to Commissioner to determine whether claimant can adjust to other work. 20 C.F.R. §§ 404.1520, 416.920.
At step two, the ALJ determined that Plaintiff's degenerative joint disease in the right hip and knee, hypertension, and status post right cortical intraparenchymal hemorrhage were severe. (AR 19-20.) However, the impairments did not meet or medically equal the listed impairments in Appendix 1, Subpart P, Regulations No. 4 and 16 at step three. 20 C.F.R. §§ 404.1520, 416.920; Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); (AR 24-25.) At step four, Plaintiff's residual functional capacity allowed him to perform more than sedentary work, but less than the full range of light work. (AR 25.) However, the ALJ determined that Plaintiff's allegations of disabling pain, medical side effects, and asthma limitations were not credible and that at step five Plaintiff was not disabled within the framework of the Medical-Vocational Rules 201.21 and 202.20 ("Grids"). (AR 25.) Based on these findings, Plaintiff was denied a period of disability and DIB and SSI benefits under Sections 216(I), 223, 1602, and 1614(a)(3)(A) of the Act. (Id.) Plaintiff's request for review of the ALJ's decision was denied on May 2, 2006, and the ALJ's decision became the final decision of the Commissioner. (AR 3.)
Section 405(g) of the Act allows unsuccessful claimants to seek judicial review of a final agency decision. 42 U.S.C.§ 405(g). Upon review, the Commissioner's decision must be affirmed if it was supported by substantial evidence and based on proper legal standards. Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005). Substantial evidence is "more than a mere scintilla" but less than a preponderance, and 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); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). A finding of substantial evidence is determined from the record as a whole. Desrosiers v. Sec'y of Health and Human Serv., 846 F.2d 573, 575-76 (9th Cir. 1988).
The claimant bears the burden of proving disability through the first four steps of the sequential evaluation. 20 C.F.R. §§ 404.1520(f), 416.920(f); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990). If the claimant meets this burden the Commissioner assumes the burden of proof at step five to show that there are jobs existing in the national economy that the claimant could perform given his residual functional capacity, age, education, and work experience. Bowen v. Yuckert, 482 U.S. 37, 146 n. 5 (1987).
Plaintiff contends that the ALJ's decision was not supported by substantial evidence because the ALJ failed to consider medical and lay testimony relating to Plaintiff's asthma and neck tumor when assessing the severity of Plaintiff's impairments at step two and residual functional capacity at step four. Plaintiff also contends that the ALJ misused the Grids to determine that Plaintiff could perform other work at step five because the ALJ failed to review or reject the opinions of two State agency medical consultants. For the ...