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Hunter-Gose v. Astrue

November 15, 2010

MALINDA HUNTER-GOSE, 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 Malinda Hunter-Gose filed a complaint on January 14, 2010, seeking review of the Commissioner's decision denying her application for disability benefits. On June 25, 2010, the Commissioner answered the complaint, and the parties filed a joint stipulation on October 20, 2010.

BACKGROUND

On November 4, 2005 (protective filing date), plaintiff, who was born on October 7, 1968, applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, claiming an inability to work since November 1, 2005, due to headaches, chronic neck pain, chronic bilateral shoulder pain, left elbow tingling, hand pain, memory problems, depression, arthritis, fatigue, stress, and related problems. A.R. 126-32, 189-90. The plaintiff's application was initially denied on April 12, 2006, and was denied again on February 8, 2007, following reconsideration. A.R. 72, 87-91, 94-99. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Robert A. Evans ("the ALJ") on August 15, 2007. A.R. 86, 877-90. On August 28, 2007, the ALJ issued a decision finding plaintiff not disabled. A.R. 69-81. The plaintiff sought review from the Appeals Council, which, on February 7, 2008, granted the request for review and remanded this matter to the ALJ for further proceedings. A.R. 120-23.

On August 27, 2008, the ALJ held a new administrative hearing, A.R. 891-900, and on November 21, 2008, the ALJ issued a decision again finding plaintiff is not disabled. A.R. 24-36. The plaintiff also appealed this decision to the Appeals Council, which denied review on October 2, 2009. A.R. 6-10, 19-20.

DISCUSSION

I.

The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's 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 she 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 her 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 her 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 her alleged onset date of November 1, 2005. (Step One). The ALJ then found plaintiff has the severe impairments of: "chronic neck pain due to degenerative disc disease, fibromyalgia and obesity" (Step Two); however, she does not have an impairment or combination of impairments that meets or equals a listed impairment. (Step Three). Finally, the ALJ determined plaintiff is able to perform her past relevant work as a receptionist and medical assistant; therefore, she is not disabled. (Step Four).

II.

A claimant's residual functional capacity ("RFC") is what she can still do despite her 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 the RFC to perform medium work*fn1 with the limitations of only occasional climbing of ladders and crawling and no climbing of ropes or scaffolds. A.R. 31. However, the plaintiff contends the ALJ's RFC assessment and ultimate Step Four determination are not ...


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