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Edward Khalil Kakish v. Michael J. Astrue

January 11, 2011

EDWARD KHALIL KAKISH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION AND SUMMARY

On November 9, 2009, plaintiff Edward Khalil Kakish ("Plaintiff") filed a complaint against defendant Michael J. Astrue ("Defendant" or "Commissioner"), seeking review of a denial of disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"). [Docket No. 3.]

On March 25, 2010, Defendant filed his answer, along with a certified copy of the administrative record. [Docket Nos. 18, 19.]

Pursuant to a November 10, 2009 case management order, the parties submitted a detailed, 29-page joint stipulation for decision on May 6, 2010. [Docket No. 20.]

On December 1, 2010, this matter was transferred to the calendar of the undersigned Magistrate Judge. [Docket No. 21.] Both Plaintiff and Defendant subsequently consented to proceed for all purposes before the Magistrate Judge pursuant to 28 U.S.C. -§ 636(c). [Docket Nos. 22, 23.] The Court deems the matter suitable for adjudication without oral argument.

In sum, having carefully studied, inter alia, the parties' joint stipulation and the administrative record, the Court concludes that the ALJ failed to develop the record fully and fairly with respect to Plaintiff's mental impairments. As the Ninth Circuit instructs, an ALJ bears the burden to scrupulously and conscientiously explore the relevant facts, particularly where the claimant is self-represented and may suffer from mental impairments. The Court thus remands this matter to the Commissioner in accordance with the principles and instructions enunciated in this Memorandum Opinion and Order.

II. PERTINENT FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, who was 39 years of age on the date of his administrative hearing, has a high school education. (Administrative Record ("AR") at 31, 34, 35, 65, 94.) His past relevant work includes employment as a gas station attendant and stock checker. (Id. at 17, 45.)

Plaintiff protectively filed for DIB and SSI on September 17, 2007, alleging that he has been disabled since February 3, 2006 due to mental impairments and pain in his legs and feet. (AR at 57, 65-67, 68-71, 78.) Plaintiff's applications, which were designated as a "prototype" case,*fn1 were denied on February 25, 2008, after which he filed a timely request for a hearing. (Id. at 52, 53, 57-61,63.)

On March 30, 2009, Plaintiff, proceeding pro se, appeared and testified at a hearing before an Administrative Law Judge ("ALJ"). (AR at 31, 33-44.) Elizabeth Ramos-Brown, a vocational expert ("VE") also testified. (Id. at 10, 31, 44-49.)

On May 20, 2009, the ALJ issued an unfavorable decision denying Plaintiff's request for benefits. (ARat 10-19.) Applying the five-step sequential evaluation process, which is discussed in detail below, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity since his alleged onset date of disability. (Id. at 12.)

At step two, the ALJ found that Plaintiff suffers from severe impairments consisting of a "history of back pain; history of hepatits A and hepatitis B; history of foot pain; history of shortness of breath; obesity; mood disorder, not otherwise specified, and history of polysubstance abuse, in early remission." (ARat 13 (emphasis and citations omitted).

At step three, the ALJ determined that the evidence does not demonstrate that Plaintiff's impairment, either individually or in combination, meet or medically equal the severity of any listing set forth in the Social Security regulations.*fn2 (AR at 13.)

The ALJ then assessed Plaintiff's residual functional capacity*fn3 ("RFC") and determined that he can "perform the full range of medium work . . . [and i]n the mental realm, [Plaintiff] can perform simple, repetitive work that is solitary and non-public." (AR at 14 (emphasis omitted).

The ALJ found, at step four, that Plaintiff lacks the ability to perform his past relevant work. (AR at 16-17.)

At step five, based on Plaintiff's RFC and the VE's testimony, the ALJ found that "there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform," including rack loader, recycler, and rug cutter. (AR at 17-18 (emphasis omitted).) Thus, the ALJ concluded that Plaintiff was not suffering from a disability as defined by the Act. (Id. at 11, 18.)

Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. (AR at 1-3, 20.) The ALJ's decision stands as the final decision of the Commissioner.

III. APPLICABLE LEGAL STANDARDS

A. Five-Step Inquiry to Ascertain a Cognizable Disability A claimant must satisfy three fundamental elements to be eligible for disability benefits: (1) a medically-determinable impairment; (2) the impairment prevents the claimant from engaging in substantial gainful activity; and (3) the impairment is expected to result in death or to last for a continuous period of at least 12 months. 42 U.S.C. -§ 423(d)(1)(A); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). A well-established five-step sequential inquiry is utilized to assess whether a particular claimant satisfies these three elements. The inquiry proceeds as follows:

First, is the claimant engaging in substantial gainful activity? If so, the claimant cannot be considered disabled.

Second, does the claimant suffer from a "severe" impairment, to wit, one continuously lasting at least 12 months? If not, the claimant is not disabled.

Third, does the claimant's impairment or combination of impairments meet or equal an impairment specifically identified as a disability by the Commissioner under 20 C.F.R. part 404, subpart P, appendix 1? If so, ...


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