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Bill Russell Valdez v. Commissioner of Social Security

February 4, 2011

BILL RUSSELL VALDEZ, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 18) and defendant's cross-motion for summary judgment (Doc. 23). For the reasons discussed below, the court will deny plaintiff's motion for summary judgment or remand and grant the Commissioner's cross-motion for summary judgment.

I. PROCEDURAL HISTORY*fn1

Plaintiff applied for social security benefits protectively on January 31, 2007 alleging an onset of disability on October 20, 2002 due to physical and mental impairments. (Certified administrative record ("CAR") 8, 11, 58-61, 93-100, 127, 138, 181.) Specifically, plaintiff claims disability based on impairments due to disc disease, back/neck/shoulder pain, depression, anxiety and agoraphobia. Plaintiff's claim was denied initially and upon reconsideration. Plaintiff requested an administrative hearing, which was held on January 23, 2009, before Administrative Law Judge ("ALJ") L. Kalei Fong. In a March 11, 2009 decision, the ALJ concluded that plaintiff is not disabled*fn2 based on the following findings:

1. The claimant met the insured status requirements of the Social Security Act though December 31, 2005.

2. The claimant has not engaged in substantial gainful activity since October 20, 2002, the alleged onset date (20 CFR 404.1571 et seq.) and 416.971 et seq.).

3. On and before December 31, 2005, the date that the claimant last met the insured status requirements for Title II benefits, the claimant did not have an impairment or combination of impairments that was severe. As of January 31, 2007, the Title XVI application date, the claimant has the following severe impairments: degenerative disc disease of the spine (20 CFR 404.1521 et seq. and 416.921 et seq.).*fn3

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of light work*fn4 as defined in 20 CFR 416.967(b).

6. The claimant is unable to perform any past relevant work (20 CFR 416.965).

7. The claimant was born on November 30, 1958 and was 43 years old, which is defined as a younger individual age 18-49, on the Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 416.93).

8. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).

9. Transferability of job skills is not material to the determination of disability because applying the Medical-Vocational Rules directly supports a finding of "not disabled," whether or not the claimant has transferable job skills ...


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