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Fleming v. Astrue

May 5, 2010

KAREN FLEMING, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 7); and (2) GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT(Doc. No. 8).

Karen Fleming on behalf of Plaintiff Edward Fleming ("Plaintiff"), proceeding by and through counsel, has filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of Defendant Commissioner of the Social Security Administration's ("Defendant") final decisions denying Plaintiff's applications for benefits under Title II and Title XVI of the Social Security Act for May 15, 2000 to March 1, 2007. Plaintiff moves the Court for summary judgment reversing the decisions and ordering an award of benefits. (Doc. No. 7.) Defendant has filed a cross-motion for summary judgment, asking the Court to affirm the denial of benefits. (Doc. No. 8.)

These motions are appropriate for submission on the papers and without oral argument pursuant to Local Rule 7.1(d)(1). For the reasons stated herein, the Court DENIES Plaintiff's motion for summary judgment and GRANTS Defendant's cross-motion.

BACKGROUND

I. Factual Background

Plaintiff was 47-years-old on his alleged onset date of disability of May 15, 2000. Plaintiff's medical reports span the period of 1997 to 2007 and document Plaintiff's conditions of diabetes, diabetic retinopathy, hepatitis C, hypertension, a right knee meniscul defect, mild obesity, depression and marijuana abuse. Plaintiff was diagnosed with lung cancer on June 12, 2007. Plaintiff was 55-years-old when he died of lung cancer on March 24, 2008.

II. Procedural History

On May 16, 2005, Plaintiff protectively filed initial applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act and for supplemental security income ("SSI") under Title XVI, alleging a disability onset date of May 15, 2000.*fn1 (Administrative Record Transcript ("Tr.") at 205-209.) The Social Security Administration (the "agency") denied the applications initially on June 27, 2005, and Plaintiff did not appeal. (Tr. at 102.)

On November 30, 2005, Plaintiff applied for DIB and SSI, alleging a disability onset date of May 15, 2000. (Tr. at 210-21.) The Social Security Administration (the "agency") denied Plaintiff's applications initially on February 3, 2006, and upon reconsideration on May 15, 2006. (Tr. at 91-92, 107-16.)

On July 15, 2006, Plaintiff timely filed a hearing request. (Tr. at 117.) On February 8, 2007, Plaintiff appeared without counsel for a hearing before Administrative Law Judge Wurzel (the "ALJ"). (Tr. at 25-45.) The ALJ rescheduled the hearing to allow Plaintiff to retain counsel, and later dismissed Plaintiff's hearing request when Plaintiff subsequently failed to appear. (Tr. at 29-45, 46-51, 93-98.) The Appeals Council vacated the dismissal and remanded for a hearing.

(Tr. at 178-80.)

Subsequently, on May 22, 2007, Plaintiff filed new concurrent applications for DIB and SSI. (Tr. at 583-87.) The agency allowed the SSI application due to lung cancer, with an onset date of March 13, 2007. (Tr. at 588-602.) However, the agency denied the DIB application because Plaintiff was last insured for DIB on September 30, 2006. (Tr. at 101, 222.)

On March 24, 2008, Plaintiff died of lung cancer. (Tr. at 185.) Plaintiff's wife, Karen Fleming, was substituted as party. (Tr. at 184.) On July 31, 2008, pursuant to the Appeals Council's remand, the ALJ held a hearing on the November 30, 2005 applications. (Tr. at 52-89.) The ALJ heard testimony from Plaintiff's wife, who was represented by counsel, and from a vocational expert. On December 31, 2008, the ALJ denied the DIB application because Plaintiff was last insured for DIB on September 30, 2006, and allowed the SSI application with an onset date of March 1, 2007. (Tr. at 4-24.) The decision became final when the Appeals Council declined to change the ALJ's decision on its own motion within 60 days of the decision.

On April 29, 2009, Karen Fleming on behalf of Plaintiff filed this action for judicial review. (Doc. No. 1.)

DISCUSSION

I. Standard of Review

Section 405(g) of the Social Security Act allows unsuccessful applicants to seek judicial review of a final decision of the Commissioner. 42 U.S.C. § 405(g). This Court has jurisdiction to review the Commissioner's benefits decision and "shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the case for a hearing." 42 U.S.C. § 405(g).

The Commissioner's denial of disability benefits will only be disturbed if the ALJ's findings are based on legal error or are not supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). "Substantial evidence" is "more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). In determining whether there exists substantial evidence to support the ALJ's finding, the court must weigh both the evidence that supports and the evidence that detracts from the ALJ's conclusion as that evidence exists in the record. Id. "Where the evidence can rationally be interpreted in more than one way, the court must uphold the Commissioner's decision." Mayes, 276 F.3d at 459 (citation omitted).

II. Five-Step Process for Determining Whether Claimant is "Disabled"

To qualify for disability benefits under the Social Security Act, an applicant must show that: (1) he or she suffers from a medically determinable impairment that can be expected to result in death or has lasted, or can be expected to last, for a continuous period of twelve months or more; and (2) the impairment renders the applicant incapable of performing the work that the applicant previously performed and incapable of performing any other substantially gainful employment that exists in the national economy. 42 U.S.C. § 423(d)(2)(A). An applicant must meet both requirements to be "disabled." Id.

The Social Security Regulations employ a five-step process to determine whether an applicant is physically disabled under the Act. If an applicant is found to be "disabled" or "not disabled" at any step, there is no need to proceed to subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). Although the ALJ must assist the applicant in developing the record, the applicant bears the burden of proof as to the first four steps. Id. If the fifth step is reached, the burden shifts to the Commissioner to rebut the finding of disability. Id. The five steps are as follows:

(1) Is the claimant presently working in any substantially gainful activity?

(2) Is the claimant's impairment severe?

(3) Does the impairment meet or equal one of a list of specific impairments?

(4) Is the claimant able to do any work that she has done in the past?

(5) Is the claimant able to do any other work that exists in significant numbers in the national economy?

20 C.F.R. § 416.920; see also Celaya v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003) (describing the five step sequential evaluation process).

III. The ALJ's Decision

The ALJ utilized the five-step eligibility test to analyze Plaintiff's claim. At step one, the ALJ found that Plaintiff was not presently engaged in substantial gainful employment. (Tr. at 12.) At step two, the ALJ found that Plaintiff had several impairments that in combination are considered "severe." At step three, the ALJ found that Plaintiff's impairments did not meet or equal one of a list of specific impairments. (Tr. at 14.) At step four, the ALJ found that Plaintiff was not able to do any work that he had done in the past. (Tr. at 21.) Finally, at step five, the ALJ found that there were a significant number of jobs in the national economy that Plaintiff could perform. (Tr. at 22.)

Based on Plaintiff's DIB application, the ALJ concluded that Plaintiff was not disabled at any time from the alleged onset date of May 15, 2000 through his date last insured on September 30, 2006. Based on Plaintiff's SSI application, the ALJ concluded that Plaintiff was disabled beginning on March 1, 2007, but not before that date, and continued to be disabled through the date of his death on March 24, 2008. (Tr. at 23.)

The ALJ made the following specific findings:

1. The claimant met the insured status requirements of the Social Security Act on the alleged onset date of May 15, 2000, and continued to meet them ...


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