The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
Baker challenges the denial of his claim for Supplemental Security Income benefits under Title XVI of the Social Security Act. The challenge was referred to Magistrate Judge Stormes for a Report and Recommendation pursuant to 28 U.S.C. § 636, after which Baker and the Commissioner filed cross-motions for summary judgment. Judge Stormes issued her R&R on February 22, 2011, finding for the Commissioner. Baker then filed an objection to the R&R. The Court apologizes to the parties that it has taken until now to issue a ruling.
The Court reviews an R&R on dispositive motions pursuant to Fed. R. Civ. P. 72(b). Rule 72(b) "makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
To qualify for social security benefits, Baker has to establish that he is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment. 42 U.S.C. § 1382c(a)(3)(A). He will be considered disabled only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).Baker bears the burden of proof that he is in fact disabled. Valentine v. Commissioner, Social Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The Commissioner bears the burden, though, of showing that Baker is still able to work. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
There is a five-step, sequential evaluation process for determining whether Baker is disabled. First, he must not be engaged in substantial gainful activity. Second, his alleged impairment must be sufficiently severe to limit his ability to work. Third, his impairment must meet or equal an impairment listed in 20 C.F.R. § 404. Fourth, he cannot possess the residual functional capacity ("RFC") to perform his past work. Fifth, his RFC, considered with his age, education, and work experience, must be insufficient to allow him to adjust to other work in the national economy. Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
The Court will uphold a denial of benefits so long as it is supported by substantial evidence and not based on legal error. Parra, 481 F.3d at 746. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. "Where the evidence can reasonably support either affirming or reversing the decision," the Court may not substitute its judgment for that of the Commissioner. Id.
Baker objects to the R&R on five grounds, which track his same objections to the ALJ's decision denying him benefits. The Court will treat these objections in sequence.
A. Opinion of Treating Physician
Baker argues that the ALJ gave insufficient weight to the opinion of his treating physician, Dr. Abramowitz. Here is what the ALJ said of Dr. Abramowitz's opinion:
Bryan Abramowitz, M.D. reported on July 22, 2009, that the claimant has severe COPD that interfered significantly with activities of daily living and that a continuation of his disability ...