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Miller v. Astrue

January 28, 2010

RUSSELL R. MILLER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge

OPINION AND ORDER

Plaintiff Russell R. Miller filed a complaint on December 17, 2008, seeking review of the Commissioner's decision denying his application for disability benefits. On May 20, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on June 19, 2009.

BACKGROUND

On October 31, 2005, plaintiff, who was then 52 years old, applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, claiming an inability to work since May 21, 2004, due to lead poisoning, dementia, and neuropsychological problems. Certified Administrative Record ("A.R.") 94-98, 122. The plaintiff's application was initially denied on May 11, 2006, and was denied again on April 5, 2007, following reconsideration. A.R. 64-74. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Lawrence D. Wheeler ("the ALJ") on November 13, 2007. A.R. 26-48, 75. On January 29, 2008, the ALJ issued a decision finding plaintiff is not disabled. A.R. 7-21. The plaintiff appealed the decision to the Appeals Council, which denied review on October 10, 2008. A.R. 3-6.

DISCUSSION

I.

The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the decision denying plaintiff disability benefits to determine whether his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). The claimant is "disabled" for the purpose of receiving benefits under the Act if he is unable to engage in any substantial gainful activity due to an impairment 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); 20 C.F.R. § 404.1505(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).

The Commissioner has promulgated regulations establishing a five- step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 404.1520. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting him from performing basic work activities. 20 C.F.R. § 404.1520(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 404.1520(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform his past work. 20 C.F.R. § 404.1520(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1520(g). Moreover, where there is evidence of a mental impairment that may prevent a claimant from working, the Commissioner has supplemented the five-step sequential evaluation process with additional regulations addressing mental impairments.*fn1 Maier v. Comm'r of the Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) (per curiam).

Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since the alleged onset date of May 21, 2004. (Step One). The ALJ then found plaintiff "has the following severe impairments: peripheral neuropathy (possibly lead toxicity related) and mild depression/ dementia (also possibly related to lead toxicity)" (Step Two); however, he does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). The ALJ next determined plaintiff is unable to perform his past relevant work as an automobile muffler and radiator installer. (Step Four). Finally, the ALJ determined plaintiff can perform a significant number of jobs in the national economy; therefore, he is not disabled. (Step Five).

II.

A claimant's residual functional capacity ("RFC") is what he can still do despite his physical, mental, non-exertional, and other limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see also Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (RFC is "a summary of what the claimant is capable of doing (for example, how much weight he can lift)."). Here, the ALJ found plaintiff has the RFC to:

perform medium work activity*fn2 not involving more than simple, repetitive tasks, more than frequent use of his bilateral upper and lower extremities, frequent use of his hands for fingering, handling and feeling, concentrated exposure to extreme temperatures or vibration, or more than moderate exposure to workplace hazards such as machinery or working at unprotected heights.

A.R. 16 (footnote omitted; footnote added). However, plaintiff contends the ALJ's RFC assessment is not supported by substantial evidence because the ALJ improperly rejected the opinions of examining psychologist Jennifer Watson, Ph.D. The plaintiff is correct.

Dr. Watson examined plaintiff on June 13 and July 13, 2005, conducted extensive psychological testing, including the Wechsler Memory Scale-R, and diagnosed plaintiff as having "moderate" dementia. A.R. 185-87, 201-09. Dr. Watson found plaintiff has "multiple areas of moderate to severe cognitive compromise, including memory. There is clear decline from a previous level of higher cognitive function. Record review raises the ...


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