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Ochoa v. Astrue

February 25, 2010


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge



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 application of January 23, 2006, made pursuant to Titles II and XVI of the Social Security Act, for a period of disability and disability insurance benefits (DIB), and for supplemental security income (SSI), in which he alleged that he had been disabled since July 13, 2005, due to lower back injury, left leg pain, memory problems, epilepsy causing an inability to stand or sit for long periods, difficulty walking, and pain upon too much movement. (A.R. 13, 105-11, 124.) The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), manifesting their consent in writings signed by the parties' authorized representatives and filed on behalf of Plaintiff on January 7, 2009, and on behalf of Defendant on January 21, 2009. Thus, the matter is 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) Christopher Larsen, dated September 3, 2008 (A.R. 13-20), rendered after a hearing held on April 21, 2008, at which Plaintiff appeared and testified with the aid of a Spanish interpreter and with representation by an attorney. Vocational expert (VE) Mr. Shapiro also testified. (A.R. 13, 46.)

After receiving additional evidence and making it part of the record, the Appeals Council denied Plaintiff's request for review of the ALJ's decision on December 10, 2008 (A.R. 1-4), and thereafter Plaintiff filed the complaint in this Court on January 5, 2009. Briefing commenced with the filing of Plaintiff's opening brief on August 10, 2009, and was completed with the filing of Defendant's brief on September 12, 2009. The matter has been submitted without oral argument to the Magistrate Judge.

I. Jurisdiction

This Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g), which provide that an applicant suffering an adverse final determination of the Commissioner of Social Security with respect to disability or SSI benefits after a hearing may obtain judicial review by initiating a civil action in the district court within sixty days of the mailing of the notice of decision. Plaintiff timely filed her complaint on January 5, 2009, less than sixty days after the mailing of the notice of decision on or about December 10, 2008.

II. 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 (9 th 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 (9 th 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).

III. Disability

A. Legal Standards

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 (9 th 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;*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.

B. The ALJ's Findings

The ALJ found that Plaintiff had severe impairments of lumbar degenerative disc disease and seizure disorder secondary to cysticercosis, but Plaintiff had no impairment or combination of impairments that met or medically equaled a listed impairment. (A.R. 15-16.) Plaintiff retained the residual functional capacity (RFC) to lift and carry twenty pounds occasionally and ten pounds frequently; sit or stand and walk a total of six hours out of an eight-hour day; never climb ladders, ropes, or scaffolds; occasionally crouch, crawl, and climb ramps or stairs; frequently balance and kneel; and avoid even moderate exposure to hazards. (A.R. 16.) Plaintiff could not perform his past relevant work, but as a thirty-five-year-old or younger person at the alleged date of onset who was illiterate but able to communicate in English, and who had the aforementioned RFC, Plaintiff could perform jobs that existed in significant numbers in the national economy, including housekeeping cleaner, DOT 323.687-014, with 53,600 positions in California and about 406,500 nationally; raw shellfish preparer, DOT 311.674-014, with about 4,500 positions in California and about 41,400 nationally; and agricultural produce sorter, DOT 529.687-186, with about 1,300 positions in California and about 3,600 nationally. (A.R. 19.) Accordingly, Plaintiff was not disabled at any time from July 13, 2005 to the date of decision, namely, September 3, 2008. (A.R. 19-20.)

C. Plaintiff's Contentions

Plaintiff argues that the ALJ ignored Plaintiff's mental impairments and the opinion of Ricardo Carrillo, Ph.D.; further, the ALJ failed to state legally sufficient reasons for rejecting Dr. Carrillo's opinion. The ALJ failed to consider the record as a whole, and the record lacked substantial evidence to support the ALJ's conclusions concerning Plaintiff's mental impairments.

IV. The Medical Record*fn2

From 2004 through 2008, Plaintiff visited the Darin M. Camarena Health Centers, Inc., and saw multiple physicians. (A.R. 309-75.) In September 2004, he reported that his last seizure was about three months before. (A.R. 374.) His seizures were "stable" in March 2005. (A.R. 372.)

On July 1, 2005, about ten days before the alleged date of onset, Plaintiff visited Andres Zimmermann, M.D., to follow up on his seizure disorder. (A.R. 203-04, 367-68.) Plaintiff reported that since about ten months before when he had started taking Dilantin daily, he had not had a seizure, although sometimes he was easily distracted with his family. The doctor had to recommend to the Department of Motor Vehicles that Plaintiff not drive.

A CT scan of Plaintiff's head with and without contrast performed on July 12, 2005, revealed no evidence of intracranial hemorrhage, mass effect, or infarct. There were multiple, small calcifications in the internal capsule, particularly on the right, and in the cerebral cortex bilaterally, suggesting cysticercosis. (A.R. ...

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