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Alexander v. Astrue

June 15, 2009

GLEN ALEXANDER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I. PROCEEDINGS

This matter is before the Court for review of the Decision by the Commissioner of Social Security denying plaintiff's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 400 et seq. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have filed their pleadings, and the defendant has filed the certified transcript of record. After reviewing the matter, the Court concludes that the Decision of the Commissioner should be affirmed.

II. BACKGROUND

On September 11, 2006, plaintiff filed an application for SSI, alleging that he became disabled on February 17, 1987, due to a mood disorder, not otherwise specified ("NOS"), learning disorder, NOS, attention-deficit hyperactivity disorder ("ADHD") by history, and a right arm and right leg injury (Administrative Record ("AR" 35, 37). Plaintiff's application was denied initially on January 16, 2007, and again denied upon reconsideration on April 5, 2007 (AR 42-46, 49-54). Thereafter, on June 9, 2007, plaintiff filed a timely written request for hearing to review the denial of his application for SSI, and was afforded a hearing before an Administrative Law Judge ("ALJ") on June 10, 2008 (AR 5-27). The ALJ issued an unfavorable Decision on June 27, 2008 (AR 32-41). The ALJ found that plaintiff has not been under a disability within the meaning of the Social Security Act since September 11, 2006 (AR 35). The ALJ also found that plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms were not credible and that plaintiff's functional limitations did not preclude him from performing sedentary work and other simple, repetitive, object oriented, non-public tasks, with only impersonal interactions with co-workers (AR 38-39).

On July 16, 2008, plaintiff filed a Request for Review of the Hearing Decision (AR 4). The Appeals Council denied review of the decision on July 25, 2008 (AR 1). This action followed.

Plaintiff makes four challenges to the ALJ's determination. Plaintiff alleges that the ALJ erred by failing: (1) to make proper credibility findings; (2) to properly consider lay witness mother Margaret Alexander's statements; (3) to properly consider the State Agency psychiatrist's opinion; (4) to properly consider the consultative examiner's assessment of plaintiff's medical condition. Each of plaintiff's contentions will be addressed in turn.

III. DISCUSSION

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence must be more than a mere scintilla, but not necessarily a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). This Court cannot disturb the Commissioner's findings if those finding are supported by substantial evidence, even though other evidence may exist which supports plaintiff's claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, Torske v. Weinberger, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971).

A person is "disabled" for the purpose of receiving benefits if the person is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The plaintiff has the burden of establishing a prima facie case of disability. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992) (citing Galant v. Heckler, 753 F.2d 1452).

The Commissioner has established a five-step sequential evaluation for determining whether a person is disabled. First, it is determined whether the person is engaged in "substantial gainful activity." If so, disability benefits are denied. Second, if the person is not so engaged, it is determined whether the person has a medically severe impairment or combination of impairments. If the person does not have a severe impairment, it is determined whether the impairment meets or equals one of a number of "listed impairments." If the impairments meet or equal a "listed impairment," the person is conclusively presumed to be disabled. Fourth, if the impairment does not meet or equal a "listed impairment," it is determined whether the impairment prevents the person from performing past relevant work. If the person is able to perform past relevant work, benefits are denied. Fifth, if the person is unable to perform past relevant work, the burden shifts to the Commissioner to show that the person is able to perform other kinds of work. 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). ISSUE NO. 1: The ALJ properly considered plaintiff's testimony.

Plaintiff asserts that the ALJ did not properly consider and assess his subjective complaints and credibility. Plaintiff contends that the ALJ merely summarized the plaintiff's testimony and did not determine credibility or explain what evidence undermined the testimony. Plaintiff further asserts that the ALJ erred in failing to provide adequate reasons for rejecting his testimony. In response, defendant argues that the ALJ provided specific reasons for finding plaintiff's subjective complaints regarding his physical and mental impairments not credible.

Plaintiff alleges that his mood disorder, learning disorder, ADHD, and right arm and right leg injuries from a motorcycle accident prevent him from carrying out work activities. However, he is able to perform a range of other daily activities. Plaintiff testified that he last worked when he turned 19 (AR 9). He worked for a construction company for approximately 2 months, and stopped because his supervisor was fired and he did not want to take any responsibility and also he wanted to do something with his motorcycle (AR 9-10). He further stated he just did not feel like going to work after that and lacked motivation to look for another job (AR 11). However, between then and his motorcycle accident in February 2008, he spent his days riding his street bike and hanging out with friends (AR 19).

Although plaintiff's subjective complaints, including pain testimony, were taken into consideration with respect to his work limitations, the ALJ found that plaintiff's testimony was inconsistent based on his own statement that he could not work as a result of his mental and physical impairments, but could regularly interact with his friends, dispense with crutches in about 5-6 weeks, and be accommodated by keeping his foot up to reduce the pain and swelling until he is physically recovered (AR 13, 14, 19). Plaintiff further ...


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