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Nobles v. Astrue

August 24, 2010

GREGORY NOBLES, 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 Gregory Nobles filed a complaint on August 19, 2009, seeking review of the Commissioner's decision denying his applications for disability benefits. On February 3, 2010, the Commissioner answered the complaint, and the parties filed a joint stipulation on March 17, 2010.

BACKGROUND

On March 19, 2007, plaintiff, who was born on January 3, 1965, 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 February 23, 2006, due to a back injury. A.R. 108-18, 128. The plaintiff's applications were initially denied on June 6, 2007, and were again denied on August 30, 2007, following reconsideration. A.R. 54-58, 61-65. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge David M. Ganly ("the ALJ") on December 16, 2008. A.R. 16-49, 67. On April 14, 2009, the ALJ issued a decision finding plaintiff is not disabled. A.R. 5-15. The plaintiff appealed this decision to the Appeals Council, which denied review on June 15, 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). 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 his alleged onset date.*fn1 (Step One). The ALJ then found plaintiff has the severe impairment of "degenerative disc disease of the lumbar spine" (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 unable to 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); 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 light work "except for occasional postural limitations, use of a cane as needed, and avoiding hazards such as machinery and heights."*fn2 A.R. 11. However, the plaintiff contends, among other things, that the ALJ erroneously determined plaintiff was not an entirely credible witness. The plaintiff is correct.

On July 19, 2004, plaintiff, who had previously undergone a lumbar discectomy, reinjured himself. A.R. 169, 221, 226. He testified at the administrative hearing that he is now unable to work due to back pain that has worsened over time. A.R. 35-36. He stated his back pain radiates down his right leg, and he has numbness in his feet. A.R. 36-37. The plaintiff further testified he wears a back brace and uses a cane to walk, A.R. 37, and he cannot bend and cannot lift anything heavier than a kitchen plate. A.R. 38-39. Additionally, plaintiff stated he cannot stand for more than 10 minutes at a time, or sit for more than 15-20 minutes a time, before having to change positions, and he spends about three hours a day resting due to his condition. A.R. 39-40.

Once a claimant has presented objective evidence that he suffers from an impairment that could cause pain or other non-exertional limitations,*fn3 the ALJ may not discredit the claimant's testimony "solely because the degree of pain alleged by the claimant is not supported by objective medical evidence." Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). Thus, if the ALJ finds the claimant's subjective complaints are not credible, he "'must provide specific, cogent reasons for the disbelief.'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). Furthermore, if there is medical evidence establishing an objective basis for some degree of pain and related symptoms, and no evidence affirmatively suggesting the ...


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