The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
DECISION AND ORDER DENYING SOCIAL SECURITY COMPLAINT (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF JOHN A. STARD, JR.
Plaintiff is proceeding in forma pauperis and with counsel with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's applications protectively filed on September 24, 2004, for Disability Insurance benefits (DIB) and for Supplemental Security Income (SSI) benefits, in which he had claimed to have been disabled since September 1, 2002, due to severe depression, chemical dependency, bipolar, schizo-affective impairments, schizophrenia, hepatitis C, and nerve-damage to the right elbow, arm, and foot. (A.R. 18, 521-22, 538 105, 1247.) The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and pursuant to the order of Judge Anthony W. Ishii filed September 9, 2008, the matter has been assigned to the Magistrate Judge to conduct all further proceedings in this case, including entry of final judgment.
The decision under review is that of Social Security Administration (SSA) Administrative Law Judge (ALJ) Bert C. Hoffman, Jr., dated February 27, 2007 (A.R. 18-25), rendered after a hearing held December 20, 2006, at which Plaintiff appeared and testified with the assistance of counsel (A.R. 1252-90). The Appeals Council denied Plaintiff's request for review on June 19, 2008 (A.R. 11-13), and thereafter Plaintiff filed his complaint in this Court on July 23, 2008. Briefing commenced on April 27, 2009, and was completed with the filing of Defendant's brief on June 5, 2009. The matter has been submitted without oral argument to the undersigned Magistrate Judge.
I. Standard and Scope of Review
Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).
In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).
In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to his or her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
The regulations provide that the ALJ must make specific sequential determinations in the process of evaluating a disability: 1) whether the applicant engaged in substantial gainful activity since the alleged date of the onset of the impairment, 20 C.F.R. § 404.1520 (1997);*fn1 2) whether solely on the basis of the medical evidence the claimed impairment is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the basis of medical evidence the impairment equals or exceeds in severity certain impairments described in Appendix I of the regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant has sufficient residual functional capacity, defined as what an individual can still do despite limitations, to perform the applicant's past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 5) whether on the basis of the applicant's age, education, work experience, and residual functional capacity, the applicant can perform any other gainful and substantial work within the economy, 20 C.F.R. § 404.1520(f).
With respect to SSI, the five-step evaluation process is essentially the same. See 20 C.F.R. § 416.920.
The ALJ found that Plaintiff had severe impairments of alcohol and cocaine dependency in intermittent remission, mood disorder, and status post-laceration to the first, second, and third fingers of the right hand; if Plaintiff stopped substance use, the remaining limitations would cause more than a minimal impact on the claimant's ability to perform basic work activities, and he would continue to have a severe impairment or combination of impairments. Regardless of Plaintiff's substance dependency, he did not have an impairment or combination thereof that met or medically equaled a listed impairment. If Plaintiff's drug and alcohol dependency were considered, his residual functional capacity (RFC) was to lift and carry up to twenty pounds occasionally, ten pounds frequently, and sit, stand, or walk for six hours in an eight-hour day, with only occasional use of the right hand forcefully to grasp or twist, perform rapid movement, or keyboard; mentally Plaintiff could understand, remember, and carry out simple instructions, but he would have difficulty with appropriate interpersonal behavior in a work setting, adhering to a work schedule, or meeting reasonable production goals. However, absent drug and alcohol dependency, the claimant would have the RFC to perform the same exertional activities with the same manipulative limitations, and he would have the mental capacity to ...