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Johnny Reese Iii v. Michael J. Astrue

January 17, 2012

JOHNNY REESE III, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. PROCEEDINGS

Plaintiff filed this action on April 12, 2011, seeking review of the Commissioner's denial of his application for Supplemental Security Income payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on April 28, 2011, and April 29, 2011. Pursuant to the Court's Order, the parties filed a Joint Stipulation on December 7, 2011, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

II. BACKGROUND

Plaintiff was born on April 28, 1980. [Administrative Record ("AR") at 60-61.] He has a high school education [AR at 139], and past relevant work as a warehouse worker. [AR at 127.]

On March 28, 2007, plaintiff applied for Supplemental Security Income payments, claiming an inability to work since February 16, 2007, due to injuries to his left leg and gunshot wounds to his head, left hand, left shoulder, and right underarm. [AR at 60-61, 124, 135, 159.] After his application was denied initially and upon reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR 62-72, 75.] A hearing was held on November 19, 2008, at which plaintiff appeared with counsel and testified on his own behalf. [AR at 29-59.] A vocational expert ("VE") and a third party witness also testified. [AR at 44-58.] The ALJ determined that plaintiff was not disabled. [AR at 5-15.] On May 6, 2009, the Appeals Council denied plaintiff's request for review. [AR at 1-4.] On June 18, 2009, plaintiff filed a complaint in this Court in Case No. ED CV 09-1049-PLA. [See AR at 394.] On April 28, 2010, the Court entered judgment for plaintiff and remanded the case back to the ALJ for further proceedings. [AR at 394-403.] On remand, a different ALJ held another hearing on December 17, 2010, at which time plaintiff appeared with counsel and again testified on his own behalf. A medical expert, a VE, and a third party witness also testified. [AR at 336-79.] On January 27, 2011, the ALJ issued an opinion again finding plaintiff not disabled. [AR at 327-35.] This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258.

IV. THE EVALUATION OF DISABILITY

Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or 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); Drouin, 966 F.2d at 1257.

A. THE FIVE-STEP EVALUATION PROCESS

The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of non-disability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id.

If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform his past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. The Commissioner then bears the burden of establishing that the claimant is not disabled, because he can perform other substantial gainful work available in the national economy. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial gainful activity since March 28, 2007, the date of the application. [AR at 329.] At step two, the ALJ concluded that plaintiff has the severe impairments of status post multiple gunshot wounds to his upper and lower extremities and head; cognitive disorder secondary to gunshot wound; mood disorder, not otherwise specified; rule out post traumatic stress disorder; cannabis abuse; and seizure disorder. [Id.] At step three, the ALJ determined that plaintiff's impairments do not meet or equal any of the impairments in the Listing. [Id.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC")*fn1 to perform "light work as defined in 20 C.F.R. § 416.967(b),"*fn2 except that plaintiff "is limited to carrying/lifting 10 pounds frequently, 20 pounds occasionally; standing/walking 2 hours in an 8 hour workday; sitting 6 hours in an 8 hour workday, with normal breaks; occasionally pushing/pulling and use of arm levers and controls with his left upper extremity; no foot controls with his left lower extremity; he can climb stairs and ramps but only less than occasionally; he cannot climb ladders, ropes, or scaffolds; no walking on uneven terrain; a hand held device is not required for ambulation but he should be allowed to use a drop foot brace and a cane for long distances; no work at unprotected heights, around flashing, strong or bright lighting or around strong odors; simple repetitive tasks with no interaction with the public; no tasks requiring hypervigilance; and no fast pace[d] work." [AR at 330-31.] At step four, the ALJ ...


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