The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF'S SOCIAL
Plaintiff Peuang Bounnhong ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income benefits pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Gary S. Austin, for findings and recommendations to the District Court.
FACTS AND PRIOR PROCEEDINGS*fn1
Plaintiff filed an application for benefits on April 23, 2008, alleging disability as of September 24, 1999. AR 95-102. Plaintiff's application was denied initially and on reconsideration, and she requested a hearing before an Administrative Law Judge ("ALJ"). AR 59-62, 66-70.*fn2 ALJ T. Patrick Hannon held a hearing and subsequently issued an order denying benefits on April 19, 2010, finding Plaintiff was not disabled. AR 12-18. On September 23, 2010, the Appeals Council denied review. AR 1-3.
ALJ Hannon held a hearing on January 25, 2010, in Fresno, California. Plaintiff appeared and testified with the aid of an interpreter; she was assisted by attorney Jeffrey Milam. Vocational Expert ("VE") Cheryl Chandler also testified. AR 19-27.
Plaintiff's testimony was limited to the fact that she applied for supplemental security income benefits in April 2008, alleging disability as of 1999, and timely appealed the denial of benefits.*fn3 AR 22-23, 26.*fn4
VE Chandler was asked to assume a hypothetical worker with a poor ability to: follow work rules, relate to co-workers and interact with supervisors, deal with the public, use judgment, deal with work stress, function independently, and maintain attention and concentration. The VE indicated that no work would be available for such an individual. AR 26.
The entire medical record was reviewed by the Court. AR 178-330. The medical evidence will be referenced below as necessary to this Court's decision.
Using the Social Security Administration's five-step sequential evaluation process the ALJ determined that Plaintiff did not meet the disability standard. AR 12-18.
More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful activity since April 23, 2008, the application date. AR 42. Further, the ALJ identified low back pain, hypothyroidism and depressive disorder as medically determinable impairments. AR 14.
Next, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that significantly limits her ability to perform basic work related activities for twelve consecutive months; thus, the ALJ found Plaintiff did not have a severe impairment or combination of impairments. AR 14-18.
In conclusion, the ALJ determined Plaintiff was not disabled and had not been under a disability since the date of application in April 2008. AR 18.
Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405 (g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner's determination that the claimant is not disabled if the Secretary applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).
In order to qualify for benefits, a claimant must establish that he is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c (a)(3)(A). A claimant must show that he has a physical or mental impairment of such severity that he is not only unable to do her 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. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
Here, Plaintiff argues that the ALJ erred (1) at step two by finding no severe impairment or impairments; (2) by failing to give specific and legitimate reasons for rejecting a treating physician's opinion; and (3) by failing to fully and fairly develop the record.
Plaintiff contends the ALJ erred in finding no severe impairment. More particularly, Plaintiff asserts that the opinion of board certified psychiatrist Ekram Michiel, M.D., supports her position because Dr. Michiel found Plaintiff's depression "to be more than 'mildly impaired,' she was, overall, moderately impaired." Further, Plaintiff asserts her lower back pain amounts to a severe impairment. (Doc. 15 at 5-8.) The Commissioner replies that no error occurred, and that Plaintiff has failed to meet her burden of establishing any severe impairment. (Doc. 16.)
At step two of the sequential evaluation process, the ALJ must conclude whether Plaintiff suffers from a "severe" impairment. The regulations define a non-severe impairment as one that does not significantly limit a claimant's physical and mental ability to do basic work activities. An impairment is not severe "if the evidence establishes a slight abnormality that has 'no more than a minimal effect on an individual's ability to work.'" Smolen v. Chater, 80 F. 3d 1273, 1290 (9th Cir. 1996). To satisfy step two's requirement of a severe impairment, the claimant must prove the existence of a physical or mental impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings; the claimant's own statement of symptoms alone will not suffice. 20 C.F.R. §§ 404.1508; 416.908. The effects of all symptoms must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptoms. 20 C.F.R. ...