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Jerry Phothikham v. Michael J. Astrue

April 11, 2011

JERRY PHOTHIKHAM, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge

MEMORANDUM OPINION

I. SUMMARY

On August 17, 2009, plaintiff Jerry Phothikham ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. On May 21, 2010, the parties filed a Joint Stipulation ("JS") setting forth their respective positions on plaintiff's claims. On*fn1 December 1, 2010, the matter was transferred and referred to the current Magistrate Judge. The parties thereafter filed consents to proceed before the current Magistrate Judge. On March 25, 2011, the matter was formally reassigned to the instant Court for final disposition. The Court has taken this matter under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15.

Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.*fn2

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION On October 31, 2006, plaintiff filed an application for Supplemental Security Income benefits. (Administrative Record ("AR") 26, 113-15). Plaintiff asserted that he became disabled on June 1, 1991, due to Autistic Disorder, language problems, and learning problems. (AR 113, 118). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel), plaintiff's mother, and a vocational expert on November 14, 2007. (AR 26, 64-89).

On February 7, 2008, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 36). Specifically, the ALJ found:

(1) plaintiff suffered from the following severe impairments: autistic spectrum disorder and asthma (AR 29); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 30-31); (3) plaintiff retained the residual functional capacity to perform a full range of work at all exertional levels with certain non-exertional limitations (AR*fn3 31); (4) plaintiff had no past relevant work (AR 34); (5) there are jobs that exist in significant numbers in the national economy that plaintiff could perform, specifically bench assembly worker and fast food worker (AR 34-35); and (6) plaintiff's allegations regarding his limitations were not wholly credible (AR 34).

The Appeals Council denied plaintiff's application for review. (AR 3).

III. APPLICABLE LEGAL STANDARDS

A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that he is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit his ability to work? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

(4) Does the claimant possess the residual functional capacity to perform his past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow him to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at ...


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