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Demison v. Astrue

June 25, 2009

DORRIS DEMISON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. PROCEEDINGS

Plaintiff filed this action on February 22, 2008, seeking review of the Commissioner's denial of her application for Supplemental Security Income payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on March 3, 2008, and March 31, 2008. The parties filed a Joint Stipulation on November 11, 2008, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

II. BACKGROUND

Plaintiff was born on November 12, 1955. [Administrative Record ("AR") at 94.] She attended school through the tenth grade, and has past work experience as, among other things, a laborer, care provider, marker, child monitor, and nurse assistant. [AR at 199, 204, 210, 212, 250, 941.]

On June 19, 2003, plaintiff protectively filed her application for Supplemental Security Income payments, alleging that she has been unable to work since May 19, 2002, due to, among other things, headaches, pain in her back and neck, tingling and numbness in her muscles and bones, numbness in her face, dizziness, fatigue, and mood swings.*fn1 [AR at 93-96, 198, 207.] After her application was denied initially and on reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 41-44, 48-52, 53.] Hearings were held on February 3, 2005, and March 14, 2005, at which plaintiff appeared with counsel and testified on her own behalf. Testimony was also received from medical and vocational experts, and from plaintiff's husband. [AR at 826-57, 858-86.] On April 29, 2005, the ALJ determined that plaintiff was not disabled. [AR at 18-23.] Plaintiff requested review of the hearing decision. [AR at 12-15.] The Appeals Council denied plaintiff's request for review on January 18, 2006. [AR at 8-10.]

Plaintiff then filed an action in District Court, Case No. ED CV 06-297-PLA, challenging the Commissioner's decision. On March 21, 2007, the Court remanded the matter with instructions to consider the testimony of plaintiff's friend and to properly rate plaintiff's mental impairment. [AR at 898-908.] On May 24, 2007, the Appeals Council vacated the ALJ's decision and remanded the case for further proceedings consistent with the Court's 2007 Order.*fn2 [AR at 913-14.]

On September 24, 2007, a third hearing was held, at which plaintiff did not appear but was represented by counsel. Testimony was received from medical and vocational experts. [AR at 1145-82.] On December 14, 2007, the ALJ determined that plaintiff was not disabled. [AR at 890-97.] This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258.

IV. THE EVALUATION OF DISABILITY

Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257.

A. THE FIVE-STEP EVALUATION PROCESS

The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of non-disability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a ...


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