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Remick v. Astrue

September 29, 2010

SHELENE L. FAULHABER REMICK, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge

MEMORANDUM OPINION

I. SUMMARY

On March 31, 2009, plaintiff Shelene L. Faulhaber Remick ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security Administration's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross-motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; April 3, 2009 Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge are supported by substantial evidence and are free from material error.*fn1

II. BACKGROUND

A. Previously Adjudicated Application

On August 15, 2002, plaintiff previously filed an application for Supplemental Security Income ("SSI") benefits ("Prior Application"). (Administrative Record ("AR") 70). An Administrative Law Judge (the "Prior ALJ") examined the medical record and heard testimony from plaintiff, who was represented by counsel, and a vocational expert on April 1, 2004 ("Prior Hearing"). (AR 23-42, 70).

On July 16, 2004, the Prior ALJ issued an unfavorable decision denying benefits based upon the Prior ALJ's conclusion that plaintiff was not disabled at any time through the date of the decision ("Prior Decision"). (AR 70-76). Specifically, the Prior ALJ found: (1) plaintiff suffered from severe degenerative disc disease of the cervical spine (AR 71); (2) plaintiff's impairment or combination of impairments did not meet or medically equal a listed impairment (AR 71-72); (3) plaintiff retained the residual functional capacity to (a) lift and carry ten pounds frequently and twenty pounds occasionally; and (b) sit, stand, and/or walk six hours (each) in an eight hour workday (AR 74); (4) plaintiff had no past relevant work (AR 74); and (5) plaintiff could perform a full range of light work.

B. Application in Issue

On October 7, 2005, plaintiff filed a subsequent application for SSI benefits which is in issue in the instant action ("Application in Issue"). (AR 12, 64-66). Plaintiff asserted that she became disabled on September 1, 2001 due to spinal disc and nerve muscle damage. (AR 71, 91.) The Administrative Law Judge ("ALJ") examined the medical record and heard testimony from plaintiff, who was represented by counsel, and a medical expert on August 13, 2008. (AR 12-17, 43-63).

On September 18, 2008, the ALJ issued his decision, incorporating by reference and supplementing the Prior Decision. (AR 12). The ALJ determined that plaintiff was not disabled since October 7, 2005, the date her SSI application was filed. (AR 12-17). Specifically, the ALJ found: (1) plaintiff suffered from severe degenerative disk disease involving the cervical spine (AR 14); (2) plaintiff's impairment or combination of impairments did not meet or equal a listed impairment (AR 14); (3) plaintiff retained the residual functional capacity to perform a full range of light work as set forth in the Prior Decision (AR 14); (4) plaintiff was unable to perform any past relevant work (AR 16); and (5) there are jobs that exist in significant numbers in the national economy that the plaintiff could perform (AR 16). (AR 12-17).

The Appeals Council denied plaintiff's application for review. (AR 4-6).

III. APPLICABLE LEGAL STANDARDS

A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit her ability to work? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

(4) Does the claimant possess the residual functional capacity to perform her past relevant work?*fn2 If so, the claimant is not disabled. If not, proceed to step five.

(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at ...


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