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Sandra Swain v. Michael J. Astrue

March 30, 2012

SANDRA SWAIN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER PROCEEDINGS

On June 16, 2011, Sandra Swain ("Plaintiff or Claimant") filed a complaint seeking review of the decision by the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for Social Security Disability Insurance benefits. The Commissioner filed an Answer on September 29, 2011. On January 5, 2012, the parties filed a Joint Stipulation ("JS"). The matter is now ready for decision.

Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision should be affirmed and this action dismissed with prejudice.

BACKGROUND

Plaintiff is a 60 year old female who applied for Social Security Disability Insurance benefits on December 15, 1984. (AR 11.) This claim was granted in 1986 and Plaintiff was awarded benefits with an onset of disability set in 1983. (AR 11.) Plaintiff's disability was based on mental depression that met the criteria of listing 12.04 of Appendix I, Subpart P of Regulations No. 4. (AR 11.) She had a continuing disability review ("CDR") in 1997 and was found to be disabled (no medical improvement). (AR 11.) Plaintiff worked from 1998 to 2000, performing substantial gainful activity ("SGA"). (AR 11.) Her disability was found to have ceased due to her performance of SGA after the 3 year extended period of eligibility ("EPE") (her trial work period was June 1994 to May 1998). (AR 11.) Her EPE began in May 1998 and ended May 2001. (AR 11.) Her benefits were terminated as of August 2001.

Plaintiff filed a Request for Expedited Reinstatement ("EXR") in 2001, but the Social Security Administration District Office lost Plaintiff's application. 20 CFR § 404.1592b. Another CDR was performed in 2001, and the state agency found Plaintiff disabled as of February 26, 2001. Disability was based on her physical impairment, with a light residual functional capacity ("RFC"), but there was medical improvement to her mental impairment and her mental impairment was determined to be non-severe. (AR 11.) However, the agency erroneously presumed Plaintiff was age 55 (she was only 49 in 2001; date of birth January 11, 1952), which led to finding her disabled based on the Medical-Vocational Guidelines ("Grids"). (AR 11.) The agency made a reconsidered determination on March 22, 2005, finding that the Claimant was not disabled and not entitled to benefits. (AR 11.)

Plaintiff filed a request for hearing on May 27, 2005. Plaintiff's request for hearing was dismissed on December 10, 2007, because it was untimely filed. (AR 11.) Plaintiff filed a request for review with the Appeals Council on December 17, 2007. (AR 11.) On July 2, 2008, the Appeals Council granted review and issued an Order of Remand, vacating the dismissal and directing further proceedings in this case. (AR 11.)

A hearing was held before Administrative Law Judge ("ALJ") Alexander Weir III on September 15, 2009, in Los Angeles, California. (AR 12.) Claimant did not appear at the hearing but her Counsel appeared and testified at the hearing. (AR 12.) Vocational expert ("VE") Sandra Trost and medical expert, David Peterson, Ph.D., also appeared and testified at the hearing. (AR 12.)

The ALJ issued an unfavorable decision on March 12, 2010. (AR 11-24.) The Appeals Council denied review on April 12, 2011. (AR 3-5.)

DISPUTED ISSUES

As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as grounds for reversal and remand:

1. Whether the ALJ abused his discretion in denying a continuance of the hearing.

2. Whether the ALJ properly assessed the residual functional capacity for the mental demands of work.

3. Whether the ALJ properly assessed the residual functional capacity for the physical demands of work.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and free of legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991) (ALJ's disability determination must be supported by substantial evidence and based on the proper legal standards).

Substantial evidence means "'more than a mere scintilla,' but less than a preponderance." Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (internal quotation marks and citation omitted).

This Court must review the record as a whole and consider adverse as well as supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).

"However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

THE SEQUENTIAL EVALUATION

The Social Security Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or . . . can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). To determine if Claimant continues to be disabled, the ALJ must follow an eight-step sequential evaluation process (20 CFR § 404.1594). (AR 12-13.)

At step one, the ALJ must determine if the Claimant is engaging in substantial activity. If so, the Claimant is no longer ...


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