This social security action was submitted to the court without oral argument for ruling on plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment. For the reasons explained below, the court will affirm the decision of the Commissioner of Social Security (Commissioner).
Plaintiff applied for Disability Insurance Benefits under Title II of the Social Security Act (Act) on March 7, 2005,*fn1 claiming disability based on a spinal cord injury with an alleged onset date of January 17, 2002.*fn2 (Transcript (Tr.) at 65-76.) The application was denied initially on June 16, 2005, and upon reconsideration on January 23, 2006. (Tr. at 11, 25-26, 33-37, 40-44.) Pursuant to plaintiff's timely request, a hearing was held before an administrative law judge (ALJ) on April 26, 2007. (Tr. at 32, 347-79.) Plaintiff, represented by Richard Shore, Esq., testified at the hearing, as did a vocational expert. (Tr. at 348.) In a decision dated June 5, 2007, the ALJ entered the following findings:
1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2007.
2. The claimant has not engaged in substantial gainful activity since January 17, 2002, the alleged onset date (20 CFR 404.1520(b) and 404.1571 et seq.).
3. The claimant has the following severe impairments: status post lumbar fusion L4-five; degenerative disc disease of the lumbar sacral spine (20 CFR 404.1520(c)).
4. 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 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity [to] perform light exertional work activity involving simple reading and writing, lifting occasionally up to 20 pounds, frequent lifting up to 10 pounds, sitting for six of eight hours, standing six of eight hours, and no climbing of ladders, ropes, scaffolds, and he is limited in kneeling, crouching and crawling, and the various other demands inherent with the requirements of light work.
6. The claimant is capable of performing his past relevant work as a cashier. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from January 17, 2002 through the date of this decision (20 CFR 404.1520(f)). (Tr. at 13-18.)
On November 28, 2007, the Appeals Council denied plaintiff's request for administrative review of the ALJ's decision. (Tr. at 3-5.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the complaint in this action on January 29, 2008.
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. 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 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Morgan, 169 F.3d at 599); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
A reviewing court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion. Jones, 760 F.2d at 995. The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or non-disability, the finding of the ALJ is conclusive, Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
In determining whether or not a claimant is disabled, the ALJ should apply the five-step sequential evaluation process established under Title 20 of the Code of Federal Regulations, Sections 404.1520 and 416.920. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step process has been summarized in the Ninth Circuit as follows:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
Plaintiff advances the following three arguments in support of his motion for summary judgment: (1) the ALJ failed to properly characterize and analyze the opinions of treating and examining physicians, without a legitimate basis for so doing; (2) the ALJ failed to properly evaluate and credit plaintiff's statements regarding the nature and extent of his pain and functional limitations; and (3) the ALJ failed to properly assess plaintiff's residual functional capacity, failed to include all of plaintiff's limitations in the hypothetical question posed to the vocational expert, failed to ask the vocational expert whether his testimony conflicted with the Dictionary of Occupational Titles and, as a result of these errors, found plaintiff capable of performing his past work as a cashier. Plaintiff's arguments challenge the ALJ's determinations at step four of the sequential evaluation process. Each argument is addressed below.
I. Step Four Analysis of Residual Functional Capacity In General
A claimant's residual functional capacity (RFC) is "the most [the claimant] can still do despite [his or her] limitations." 20 C.F.R. § 404.1545(a). The assessment of a claimant's RFC must be "based on all the relevant evidence in [the claimant's] case record." Id. See also Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001). When a claimant requests an ...