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Brooks-Henriquez v. Astrue

April 4, 2009

DONNA N. BROOKS-HENRIQUEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



ORDER

This social security action was submitted to the court, without oral argument, for ruling on plaintiff's motion for remand and defendant's cross-motion for summary judgment. For the reasons explained below, the court concludes that the decision of the Commissioner of Social Security ("Commissioner") must be affirmed.

PROCEDURAL BACKGROUND

This action concerns plaintiff Donna Nell Brooks-Henriquez's second application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act (the Act).

Plaintiff previously applied for SSI on January 20, 1999, alleging disability since January 15, 1999. Her application was denied initially and on reconsideration. At plaintiff's request, a hearing was held before an administrative law judge ("ALJ") on December 6, 2000, at which time plaintiff was represented. In a decision issued on April 24, 2001, ALJ L. Kalei Fong determined that plaintiff was not disabled. The ALJ made the following findings: plaintiff had not engaged in substantial gainful activity since the alleged onset of disability; plaintiff had severe impairments; plaintiff's medically determinable impairments did not meet or medically equal any listed impairment; plaintiff's allegations regarding her limitations were not totally credible; plaintiff had the residual functional capacity to lift 20 pounds occasionally and 10 pounds frequently, to walk and/or stand for six hours, to sit for six hours, to perform postural activities occasionally, except for climbing ropes, ladders and scaffolds, and to perform simple repetitive tasks, i.e., unskilled work, with infrequent direct contact with co-workers and the public; plaintiff's past relevant work as a telephone clerk or telemarketer did not require performance of work-related activities precluded by her residual functional capacity; plaintiff's dysthymia, neck and back pain, and pain disorder did not prevent her from performing past relevant work; plaintiff was not under a "disability" as defined in the Social Security Act at any time through the date of the decision. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on August 9, 2002. Plaintiff sought judicial review by filing her complaint in the action entitled Brooks-Henriquez v. Barnhart, Case No. CIV S-02-2317 DAD, on October 22, 2002. By order filed March 23, 2004, the undersigned denied plaintiff's motion for summary judgment, granted defendant's motion for summary judgment, and affirmed the Commissioner's final decision.*fn2

Plaintiff filed a new application for SSI on January 23, 2004, alleging disability since September 15, 1998. (Tr. at 53-55.) The Commissioner denied the application initially on March 18, 2004, and upon reconsideration on July 1, 2004. (Tr. at 38-50.) Upon plaintiff's request for an administrative hearing, a hearing was held before ALJ Fong on November 9, 2005.

(Tr. at 11, 52, 141-58.) Plaintiff, represented by non-attorney Danielle Duarte, testified at the hearing. (Tr. at 11, 24,141, 143-58.) In a decision dated March 21, 2006, the ALJ determined that plaintiff was not disabled. (Tr. at 8-18.) The ALJ entered the following findings:

1. The claimant has not engaged in substantial gainful activity at any time relevant to this decision (20 CFR 416.920(b)).

2. The claimant has the following severe impairments: degenerative disc disease of the lumbar spine, a thyroid condition, degenerative joint disease of both knees, and myofascial pain syndrome involving the right shoulder and hip (20 CFR 416.920(c)).

3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to lift 10 pounds occasionally and frequently walk/stand two hours, sit six hours, occasionally perform postural activities, occasionally reach overhead, and work in an environment where she is not exposed to extreme cold and heat. She has no visual or communicative limitations nor any other manipulative or environmental limitations. She has no mental limitations. This residual functional capacity is adopted from the prior decision.

5. The claimant is capable of performing past relevant work as a telemarketer and sales associate. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 416.965).

6. The claimant has not been under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR 416.920(f)).

(Tr. at 14-17.)

On June 21, 2006, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (Tr. at 4-6.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the complaint in this action on August 21, 2006.

LEGAL STANDARD

The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record as a whole and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to ...


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