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Norwood v. Astrue

June 17, 2010

LARRY NORWOOD, 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 Larry Norwood filed a complaint on June 19, 2009, seeking review of the Commissioner's decision denying his application for disability benefits. On November 6, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on December 30, 2009.

BACKGROUND

On November 9, 2006, plaintiff, who was born on February 6, 1959, applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, and Title XVI of the Act, the Supplemental Security Income program ("SSI"), claiming an inability to work since June 1, 1994, due to fatigue, pain, diarrhea, cramping, nausea, and depression. A.R. 101-10. The plaintiff's applications were initially denied on May 11, 2007, and were denied again on August 17, 2007, following reconsideration. A.R. 56-70. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Ariel L. Sotolongo ("the ALJ") on September 30, 2008. A.R. 19-51, 72. On January 29, 2009, the ALJ issued a decision finding plaintiff is not disabled. A.R. 5-18. The plaintiff appealed this decision to the Appeals Council, which denied review on April 18, 2009. A.R. 1-4.

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 if 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). "In determining whether the Commissioner's findings are supported by substantial evidence, [this Court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). "Where the evidence can reasonably support either affirming or reversing the decision, [this Court] may not substitute [its] judgment for that of the Commissioner." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008); Vasquez, 572 F.3d at 591.

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), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(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, 416.920. 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), 416.920(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), 416.920(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), 416.920(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), 416.920(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), 416.920(g).

Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since the alleged onset date. (Step One). The ALJ then found plaintiff has the following severe impairments: "human immunodeficiency virus (HIV); neuropathy in the lower extremity; foot calluses; alcohol abuse; and depression" (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 cannot perform his past relevant work. (Step Four). Finally, the ALJ found 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 the following limited range of light work:*fn1

The [plaintiff] can lift and carry 20 pounds occasionally and 10 pounds frequently; stand and walk for up to 4 hours in an 8[-]hour day; and sit for up to 6 hours in an 8[-]hour day. The claimant can also engage in occasional climbing of ladders, ropes, and scaffolds; and may do all other postural activities on a frequent basis. The [plaintiff] must also only occasionally be exposed to unprotected heights; and must be limited to simple, repetitive work.

A.R. 13. However, the plaintiff contends this RFC determination is not supported by substantial evidence because the ALJ did not properly consider a nonexamining physician's opinion and ...


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