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Matthew Wimberly v. Michael J. Astrue

February 21, 2012

MATTHEW WIMBERLY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Jean Rosenbluth U.S. Magistrate Judge

I. PROCEEDINGS

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER

Plaintiff Matthew Wimberly seeks review of the Commissioner's final decision denying his application for Supplemental Security Income benefits ("SSI"). The matter is before the Court on the parties' cross-motions for summary judgment. The Court has taken both motions under submission without oral argument. For the reasons stated below, Plaintiff's motion is denied and Defendant's is granted, the decision of the Commissioner is affirmed, and this action is dismissed with prejudice.

II. BACKGROUND

Plaintiff was born on July 23, 1962. (Administrative Record ("AR") 37.) He has past work experience as a caregiver, construction worker, and laborer. (AR 64.) Plaintiff originally filed an application for SSI benefits on December 7, 2004, alleging disability beginning on April 1, 2004, from injuries to his hands, gunshot wounds in his legs, and arthritis in his hands and legs. (AR 63.) Following a 2006 hearing before an Administrative Law Judge ("ALJ"), the ALJ determined that Plaintiff retained the residual functional capacity ("RFC")*fn1 to perform a significant number of jobs that existed in the local and national economy. (AR 14.) After a request for review by the Appeals Council was denied, Plaintiff appealed to this Court, which concluded that remand was appropriate because the ALJ had improperly ignored the opinion of a state agency physician. See Wimberly v. Astrue, No. CV 07-1952-JC, 2008 WL 4381617 (C.D. Cal. Sept. 25, 2008).

Upon remand, a hearing was held before ALJ Cynthia A. Minter on October 22, 2009. (AR 271.) Plaintiff, who was represented by counsel, testified at the hearing, as did a Vocational Expert, Barbara Miksic ("VE Miksic"). (Id.) The ALJ determined that Plaintiff had a more limited RFC than found by the ALJ in the 2006 hearing decision. (AR 273-74.) She nevertheless found that Plaintiff was not disabled and denied the application. (AR 271-79.) On April 6, 2011, the Appeals Council declined review. (AR 253-55.)

Plaintiff contends that the ALJ's determination that Plaintiff could perform gainful work available in the national economy was not supported by substantial evidence. (Pl.'s Mot. at 3-9.) Specifically, Plaintiff challenges the ALJ's finding that he could perform the occupation of "call out operator" as well as her determination that the occupation of "surveillance system monitor" existed in sufficient numbers in the economy suitable to his limitations. (Pl.'s Mot. at 5-7.) Plaintiff also argues that even if he did have the RFC to perform the identified occupations, a finding of disabled was still warranted based on a comparison to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 201. (Pl.'s Mot. at 6-8).

III. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), a district court may review the decision of the Commissioner (or ALJ) to deny benefits. The Court may set aside the Commissioner's decision when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, the court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing that conclusion, a court may not substitute its judgment for that of the Commissioner, and the ALJ's decision must be upheld. Reddick, 157 F.3d at 720-21.

IV. THE EVALUATION OF DISABILITY

People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a severe 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 12 months.

42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

A. The Five-Step Evaluation Process The Commissioner follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 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. § 416.920(a)(4)(i). If the claimant is not 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. § 416.920(a)(4)(ii). 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. § 416.920(a)(4)(iii). If the claimant's impairment does not meet an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient RFC to perform his past work; if so, the claimant is not disabled. § 416.920(a)(4)(iv). 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 that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, 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. § 416.920(a) (4)(v). That determination comprises the fifth and final step in the sequential analysis. § 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 At step one, the ALJ found that Plaintiff had not engaged in any substantial gainful activity since December 7, 2004. (AR 273.) At step two, the ALJ concluded that Plaintiff "has the following severe impairments: he is status post a right hand fracture and right elbow injury and he is status post gun shot wound injuries to the bilateral thighs." (Id.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of ...


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