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Bailey v. Astrue

August 24, 2010


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


Plaintiff Keith Bailey filed a complaint on August 5, 2009, seeking review of the Commissioner's decision denying his applications for disability benefits. On December 22, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on February 8, 2010.


On May 4, 2006, plaintiff, who was born on March 26, 1979, applied for disability benefits under both 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 April 1, 2002, due to testicular pain and mental problems. A.R. 61-68, 88. The plaintiff's applications were initially denied on September 29, 2006, and were again denied on March 16, 2007, following reconsideration. A.R. 41-56. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Thomas J. Gaye ("the ALJ") on January 16, 2009. A.R. 18-40, 59. On February 10, 2009, the ALJ issued a decision finding plaintiff is not disabled. A.R. 6-17. The plaintiff appealed this decision to the Appeals Council, which denied review on June 9, 2009. A.R. 1-4.



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). 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 his alleged onset date. (Step One). The ALJ then found plaintiff has the following severe impairments: "epididymitis, dysthymic disorder, depressive disorder not otherwise specified and substance abuse"*fn2 (Step Two); however, he does not have an impairment or combination of impairments that meets or equals a listed impairment. (Step Three). The ALJ next determined plaintiff is capable of performing his past relevant work as a laborer and house cleaner; therefore, he is not disabled. (Step Four).


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); Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). Here, the ALJ found plaintiff has the RFC to perform limited medium work,*fn3 as follows: consider the opinion of Dr. Allison, a nonexamining psychiatrist, and lay witness testimony.

A. Nonexamining Physician's Opinion

On April 21, 2005, plaintiff was seen at the Riverside County Department of Mental Health ("DMH") by a licensed clinical social worker, John Lane, LCSW, A.R. 251-54, and plaintiff contends the ALJ erred in not considering Mr. Lane's opinion. Jt. Stip. at 10:26-12:21, 16:25-17:5. However, since J. Allison, M.D., subsequently, on May 21, 2005, co-signed Mr. Lane's assessment, this Court considers the assessment to be Dr. Allison's,*fn4 rather than Mr. Lane's, who, as a social worker, "is not considered an 'acceptable medical source[]' under the regulations." Turner v. Comm'r, Soc. Sec., __ F.3d __, 2010 WL 2991383, *4 (9th Cir. (Or.)). Accordingly, the record shows that Dr. Allison, a nonexamining physician, diagnosed plaintiff as having an unspecified mood disorder and an unspecified psychotic disorder, rule out major depression with psychotic features, cannabis dependency, amphetamine abuse and antisocial personality disorder, and determined plaintiff's Global Assessment of Functioning ("GAF") was 50.*fn5 A.R. 251-54. When Mr. Lane interviewed plaintiff, plaintiff complained of chronic pain in his groin, which caused him to be depressed and to have moderate suicidal ideations. A.R. 252. Plaintiff also reported that he "hear[d] voices on & off" since he was 21 years old "telling him to hurt [him]self[,]" and he ...

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