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Brown v. Astrue

September 15, 2008



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Supplemental Security Income and Disability Insurance Benefits under Title XVI and Title II, respectively, of the Social Security Act ("Act"). For the reasons that follow, plaintiff's motion for summary judgment is denied, and the Commissioner's cross-motion for summary judgment is granted. The Clerk is directed to enter judgment for the Commissioner.


Plaintiff, born August 23, 1955, initially applied for disability benefits and supplemental security income on September 19, 2001, alleging disability since January 27, 2001, due to depression, broken collar bone, and broken back.*fn1 Administrative Record ("AR") 67-69, 72, 312. The applications were denied initially and upon reconsideration. AR 39-42, 313-18.

A hearing was held before administrative law judge ("ALJ") Barry M. Wesker on July 15, 2003. The hearing was continued to November 20, 2003, so that the results of a psychological examination could be entered in the record and considered at the hearing. AR 322-79. On May 15, 2004, the ALJ found plaintiff not disabled.*fn2 AR 11-26. The ALJ made the following findings:

1. The claimant meets the non-disability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through June 30, 2001.

2. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.

3. The claimant's dysthymia, anxiety disorder, borderline intellectual functioning, polysubstance abuse in remission, hepatitis C, status post right clavicle fracture and lumbar strain with mild compression deformities of the lumbar spine are considered "severe" based on the requirements in the Regulations 20 CFR §§ 404.1520(c) and 4156.920(b).

4. Based on the testimony of the Medical expert, the severity of the claimant's polysubstance abuse and mental condition meets section 12.09 of the listing of impairments in conjunction with section 12.08 of the Listing of Impairments.

5. Absent the claimant's polysubstance abuse or while her polysubstance abuse is in remission, the above medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.

6. The undersigned finds the claimant's allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision.

7. With polysubstance abuse, the claimant is unable to sustain regular and continuous work.

8. Absent polysubstance abuse, the claimant retains the residual functional capacity for no more than a full range of light exertional work at a less than average pace, further reduced by mental limitations precluding the claimant's ability to perform more than simple, one to two step tasks, and manipulative limitations that reduce her overall use of her right dominant arm by 25 percent and otherwise precludes all overhead activity with her right dominant arm.

The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.

9. The claimant is unable to perform any of her past relevant work (20 CFR §§ 404.1565 and 416.965).

10. The claimant is a "younger individual between the ages of 45 and 49" (20 CFR §§ 404.1563 and 416.963).

11. The claimant has a "high school equivalent education" (20 CFR §§ 404.1564 and 416.964).

12. The claimant has no appreciable transferable skills from skilled work previously performed as described in the body of the decision (20 CFR §§ 404.1568 and 416.968).

13. Based on the testimony of the vocational expert, and considering the claimant's age, education, work experience and residual functional capacity as described above absent polysubstance abuse, she is able to make a successful adjustment to work that exists in significant numbers in the national and California economies; a finding of "not disabled" is therefore reached under the framework of Rule 202.21 of the Medical-Vocational Guidelines. Examples of such jobs include 1,200 flagger positions in the California economy, 1,500 retail business marker positions in the California economy and 5,000 skating rink or amusement park ticket seller positions in the California economy.

14. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR §§ 404.1520(f) and 416.920(f)).

15. The claimant's polysubstance abuse is a contributing factor material in the ...

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