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Averbach v. Astrue

August 6, 2010

FRED AVERBACH, 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 Fred Averbach filed a complaint on June 4, 2009, seeking review of the Commissioner's decision denying his applications for disability benefits. On November 17, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on February 4, 2010.

BACKGROUND

On January 7, 2000, plaintiff, who was born on January 7, 1946, first applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, and the Supplemental Security Income program ("SSI") of Title XVI of the Act, claiming an inability to work since June 19, 1998, due to depression, asthma and kidney stones. A.R. 182-86, 190. After his applications were denied, an administrative hearing was held before Administrative Law Judge Richard L. Leopold ("ALJ Leopold"), A.R. 21-25, 180, 554, 578-82, who issued a decision on August 21, 2001, finding plaintiff is not disabled. A.R. 12-20, 540-48. Following the Appeals Council's denial of review, A.R. 6-11, 549-52, plaintiff filed a complaint in this district court challenging the denial of disability benefits to him. See Averbach v. Barnhart, CV 03-6303-RC ("Averbach I").*fn1 On January 9, 2004, pursuant to the parties' stipulation, this Court remanded the matter to the Social Security Administration under sentence four of 42 U.S.C. § 405(g). A.R. 559-64.

The Appeals Council, in turn, remanded the matter to ALJ Leopold, who held further administrative proceedings, A.R. 485, and on July 7, 2005, ALJ Leopold issued a decision again finding plaintiff is not disabled. A.R. 481-88. Upon review, the Appeals Council determined ALJ Leopold had failed to comply with its order of remand, A.R. 471-75, and ordered another ALJ, Sherwin F. Biesman ("the ALJ"), to hold further administrative proceedings. A.R. 507-19. On April 7, 2008, the ALJ issued a decision finding plaintiff is not disabled, A.R. 850-57, and on July 18, 2008, the Appeals Council again remanded the matter to the ALJ for further proceedings. A.R. 867-70. On January 21, 2009, the ALJ held further administrative proceedings, A.R. 520-39, and on March 30, 2009, the ALJ again issued a decision finding plaintiff is not disabled. A.R. 454-64. The Appeals Council declined review, A.R. 444-45, and the ALJ's decision is now before the Court.

DISCUSSION

I.

The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's 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), 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). In this case, since plaintiff's disability insured status for Title II purposes*fn2 expired on December 31, 2001,*fn3 plaintiff must prove he was either permanently disabled or subject to a condition which became so severe as to disable him prior to that date. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998); Armstrong v. Comm'r of the Soc. Sec. Admin., 160 F.3d 587, 589 (9th Cir. 1998).

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). 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.*fn4 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 his alleged onset date. (Step One). The ALJ then found plaintiff does not have a severe impairment or combination of impairments; therefore, he is not disabled.*fn5 (Step Two).

II.

The Step Two inquiry is "a de minimis screening device to dispose of groundless claims." Smolen, 80 F.3d at 1290; Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The Supreme Court has recognized that including a severity requirement at Step Two of the sequential evaluation process "increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account." Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed. 2d 119 (1987). However, an overly stringent application of the severity requirement violates the Act by denying disability benefits to claimants who meet the statutory definition of disabled. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994).

A severe impairment or combination of impairments within the meaning of Step Two exists when there is more than a minimal effect on an individual's ability to do basic work activities. Webb, 433 F.3d at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see also 20 C.F.R. §§ 404.1521(a), 416.921(a) ("An impairment or combination of impairments is not severe if it does not significantly limit [a person's] physical or mental ability to do basic work activities."). Basic work activities are "the abilities and aptitudes necessary to do most jobs," including physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling, as well as the capacity for seeing, hearing and speaking, understanding, carrying out, and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers and usual work situations, and dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b); Webb, 433 F.3d at 686. If the claimant meets his burden of demonstrating he suffers from an impairment affecting his ability to perform basic work activities, "the ALJ must find that the impairment is 'severe' and move to the next step in the SSA's five-step process." Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001) (emphasis in original); Webb, 433 F.3d at 686.

The ALJ found at Step Two that plaintiff does not have a severe impairment or combination of impairments. However, plaintiff contends this finding is not supported by substantial evidence because the ALJ did not properly consider the medical opinions of plaintiff's treating psychiatrist, William Vicary, M.D., and other medical evidence, did not properly address plaintiff's asthma, ...


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