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Bailey v. Astrue

August 25, 2010

ALEX BAILEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act ("Act").*fn1 In his motion for summary judgment, plaintiff contends that the Administrative Law Judge ("ALJ") in this case erred by: (1) failing to consider the opinions of certain treating doctors regarding plaintiff's mental functioning; (2) discounting plaintiff's testimony in part; and (3) not developing the record with respect to plaintiff's reading and math skill deficiencies. (See Dkt. No. 20.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 21.) Plaintiff did not file a reply brief.

For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.

I. BACKGROUND*fn2

Plaintiff was 37 years old at the time of the ALJ's decision denying SSI benefits and, with respect to education, he finished part of the ninth-grade and was unable to obtain a GED. (Administrative Transcript ("AT") 10, 27-28.) He has a history of mental health problems, intermittent incarceration, drug use and, at the time of the ALJ's decision, was homeless. (AT 30-32, 34.) Plaintiff has performed various types of work for various lengths of time while not incarcerated, including work as a dishwasher, a car washer, a casual laborer, and a janitor. (AT 28-30, 118.)

A. Procedural Background

On August 10, 2005, plaintiff filed an application for SSI benefits, alleging a disability onset date of November 5, 1970, his date of birth. (AT 82-87.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 48, 55, 57-61.) Plaintiff filed a timely request for a hearing, and the ALJ conducted a hearing on plaintiff's claims. (AT 23-42, 55.) Plaintiff, who was represented by counsel at the hearing, was the only person to testify at the hearing.

In a decision dated March 4, 2008, the ALJ denied plaintiff's application, finding that plaintiff could perform jobs that exist in significant numbers in the national economy.*fn3 (AT 10-18.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 2-4.) Plaintiff subsequently filed this action.

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ noted that plaintiff had "been hired at a temporary agency as of March 4, 2007," but continued with the sequential analysis because "any work activity would be subject to a trial work period." (AT 11.) At step two, the ALJ concluded that plaintiff had previously suffered a "left medial orbital fracture" and had the following "severe" impairments: drug-induced brachycardia, high blood pressure, mild degenerative disc disease of the cervical spine, chronic lower back pain, an impulse control disorder, polysubstance abuse, post-traumatic stress disorder, a learning disorder, bipolar disorder with psychotic features, and an antisocial personality disorder. (AT 11.) Notably, plaintiff's motion for summary judgment does not allege error on the ALJ's part with respect to resolution of plaintiff's physical impairments, as opposed to plaintiff's mental impairments. At step three, the ALJ determined that plaintiff's impairments, whether alone or in combination, did not meet or medically equal any impairment listed in the applicable regulations. (AT 11-12.)

The ALJ further determined that plaintiff had the following residual functional capacity ("RFC"):

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 C.F.R. 416.967(c), except he has limitation in performing complex or detailed job tasks. However, the claimant retains the ability to understand, remember and carry out simple one or two-step instructions.

The claimant also has the ability to relate and interact with others with minimal co-worker, supervisor and public contact and he can adapt to stresses common to a normal work environment. The claimant also can maintain concentration, attention, persistence and pace and he can maintain regular attendance. In other words, the claimant retains the ability to perform simple, unskilled work. (AT 17; see also AT 14.) Considering this RFC, the ALJ found at step four that plaintiff was not capable of performing past relevant work, which included work as a laborer performing "heavy exertional work." (AT 15-16, 17.) However, at step five, the ALJ concluded, in reliance on plaintiff's RFC and Medical-Vocational Guideline 203.25, that plaintiff was not "disabled" within the meaning of the Act because plaintiff was able to perform jobs in significant numbers in the national economy. (AT 16, 17.)

II. ISSUES PRESENTED

Plaintiff presents three issues for review. First, he argues that the ALJ failed to consider the opinions of treating doctors, Anthony Coppola, M.D., R. Lawrence, Ph.D, and Muniyapla Rajappa, M.D., regarding plaintiff's mental functioning. Second, he argues that the ALJ's finding that plaintiff's testimony was not entirely credible is not supported by substantial evidence in the record. Finally, plaintiff argues that the ALJ erred by not referring plaintiff to "educational testing" to determine plaintiff's reading and mathematical ability.

III. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means 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.'" Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690 (citing Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)); see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational ...


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