The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge
Plaintiff Arthur Aragon, aka Arthur Cruz Aragon, filed a complaint on January 13, 2010, seeking review of the Commissioner's decision denying his application for disability benefits. On May 25, 2010, the Commissioner answered the complaint, and the parties filed a joint stipulation on August 13, 2010.
On December 5, 2006, plaintiff, who was born on January 10, 1957, applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, claiming an inability to work since August 1, 2005, due to cervical, thoracic and lumbar spine problems.
A.R. 10, 74-76, 83. The plaintiff's application was initially denied on March 2, 2007, and was denied again on July 9, 2007, following reconsideration. A.R. 55-65. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Lawrence D. Wheeler ("the ALJ") on June 18, 2008. A.R. 28-50. On September 29, 2008, the ALJ issued a decision finding plaintiff is not disabled. A.R. 7-18. The plaintiff appealed this decision to the Appeals Council, which denied review on November 13, 2009. A.R. 1-4.
The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff Title II disability benefits to determine whether his findings are supported by substantial evidence and he 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); 20 C.F.R. § 404.1505(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. 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). 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). 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). 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). 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).
Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since the alleged onset date of August 1, 2005. (Step One). The ALJ then found plaintiff "has 'severe' impairments of the cervical spine (primary) and thoracolumbar 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 as an auto mechanic. (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).
A claimant's residual functional capacity ("the 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); see also Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (RFC is "a summary of what the claimant is capable of doing (for example, how much weight he can lift)."). Here, the ALJ found plaintiff has RFC to perform light work*fn1 "that requires no more than occasional climbing, stooping or crouching. A.R. 17. However, plaintiff contends the ALJ's decision is not supported by substantial evidence because the ALJ failed to properly consider the opinion of examining physician Roger S. Sohn, M.D., an orthopedic surgeon. The plaintiff is correct.
On December 31, 2004, plaintiff injured his neck in a work-related accident. A.R. 134, 233. On February 8, 2006, Dr. Sohn examined plaintiff for a surgical consultation, and opined surgery was a reasonable option because conservative treatment had failed. A.R. 134-39. In reaching this opinion, Dr. Sohn reviewed a cervical spine MRI taken in April 2005, which showed a C3-C4 broad-based central left paracentral disc herniation (possible extrusion) and smaller findings at C4-C5, C5-C6, and C6-C7, with C6-C7 flattening the ventral margin of the spinal cord. A.R. 138. On June 9, 2006, Alan Rashkin, M.D., operated on plaintiff, performing "left C3 through C7 laminoplasties and lateral nerve root decompressions from C3 to C7[,] [an] [a]pplication of Medtronic plates and screws for support[,] [and] NuVasive spinal cord monitoring." A.R. 146-47.
On March 8, 2007, Dr. Sohn reexamined plaintiff and diagnosed him as having thoracolumbar strain. A.R. 223-37. Cervical spine x-rays showed internal fixation at C3-C4, C4-C5, C5-C6 and C6-C7. A.R. 228. Dr. Sohn opined "[w]ith regard to the cervical spine, [plaintiff] is limited to light work only and no repetitive motions of the cervical spine[,]" and, ...