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Kenneth Oh v. Michael J. Astrue

February 3, 2011

KENNETH OH,
PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Kenneth Oh seeks judicial review of the Commissioner's denial of his application for Supplemental Security Income ("SSI") benefits under the Social Security Act. For the reasons discussed below, the decision of the Commissioner is affirmed and the action is dismissed with prejudice.

I. Factual and Procedural History

Plaintiff was born on September 29, 1964. He has a seventh grade education and no relevant work experience. (Administrative Record ("AR") 97, 191, 210.)

Plaintiff filed an application for SSI benefits on August 22, 2006, alleging that he had been disabled since August 22, 2006, due to seizure disorder. (AR 8, 181.) Plaintiff's application was denied initially and upon reconsideration (AR 99-103, 105-109.) Administrative hearings were held on May 9, 2008 (AR 57-96) and again on January 30, 2009 (AR 19-56) before Administrative Law Judge ("ALJ") David M. Ganly. Plaintiff, represented by counsel, appeared but did not testify. Medical Expert ("ME") Dr. Nafoosi and lay witness Sang Bin Park testified. (AR 23-54.)

On October 14, 2009, ALJ Ganly denied Plaintiff's application for benefits. (AR 8-18.) The ALJ found that Plaintiff suffered from the severe impairment, a seizure disorder, but that the impairment did not meet, or was not medically equal to, one of the impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (Id.) The ALJ further found that Plaintiff retained the residual functional capacity ("RFC") to "perform a full range of work at all exertional levels but the claimant is limited by seizure precautions to include no climbing ladders, ropes or scaffolds, no working at unprotected heights, no working with machinery, and no working around open pools of water or other hazards." (AR 11.)

The ALJ concluded that there were jobs that exist in significant numbers in the national economy that Plaintiff could perform at all exertional levels and that the seizure precautions did not have a significant effect on the work that existed in the national economy. (Id.) Accordingly, it was determined that Plaintiff was not disabled within the meaning of the Social Security Act. (AR 18.)

On June 30, 2010, the Appeals Council denied review (AR 1-3). Plaintiff then commenced this action for judicial review. On January 22, 2011, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues. Plaintiff contends that the ALJ erred by (1) failing to properly consider the testimony of the lay witness and (2) failing to properly develop the record. (Joint Stip. at 2.) Plaintiff requests that the Court reverse and remand for an award of benefits, or in the alternative, reverse and remand for a new administrative hearing. (Joint Stip. 14.) The Commissioner requests that the ALJ's decision be affirmed. (Joint Stip. 15.)

II. Standard of Review

Under 42 U.S.C. 405(g), a district court may review the Social Security Commissioner's decision to deny benefits. The Court must uphold the Social Security Administration's disability determination unless it is not supported by substantial evidence or is based on legal error. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)(citing Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Substantial evidence means more than a scintilla, but less than a preponderance; it is evidence that "a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing 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. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute [its] judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. Discussion

A. The ALJ Properly Evaluated the Testimony of the Lay Witness

Plaintiff contends that the ALJ improperly discounted the testimony of lay witness San Bin Park. (Joint Stip. 3.) The ALJ found that Mr. Park was not fully credible because (1) Mr. Park had a financial interest in Plaintiff receiving benefits because Plaintiff, who had no other source of income lived with Mr. Park; (2) Mr. Park testified that he had taken Plaintiff to the emergency room at Bear Valley Community Hospital on multiple occasions but there was no record of Plaintiff being treated there; and (3) Mr. Park's description of Plaintiff's seizures was vague and contradictory. (AR 16.)

A lay witness can provide testimony about Plaintiff's symptoms and limitations. See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). "Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); see also Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). Appropriate ...


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