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Keo Xayadeth v. Michael J. Astrue

May 16, 2012


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


Keo Xayadeth ("Plaintiff") asserts she is entitled to supplemental security income under Title XVI of the Social Security Act. Plaintiff argues the administrative law judge ("ALJ") improperly evaluated the opinion of her treating physician. Therefore, Plaintiff seeks review of the administrative decision denying her claims for benefits. For the reasons set forth below, Defendant's motion for summary judgment is GRANTED, and the administrative decision is AFFIRMED.


Plaintiff filed an application for supplemental security income November 1, 2007, alleging disability beginning June 1, 2000. AR at 112-20. The Social Security Administration denied her claim initially and upon reconsideration. Id. at 85-88, 92-97. After requesting a hearing, Plaintiff testified before an ALJ on February 23, 2010. Id. at 1. The ALJ determined Plaintiff was not 2 disabled, and issued an order denying benefits on March 12, 2010. Id. at 31-44. Plaintiff requested 3 review of the ALJ's decision by the Appeals Council of Social Security, which was denied on March 4 2, 2011. Id. at 24-29. Therefore, the ALJ's determination became the decision of the Commissioner 5 of Social Security ("Commissioner"). 6


District courts have a limited scope of judicial review for disability claims after a decision by 8 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, 9 such as whether a claimant was disabled, the Court must determine whether the Commissioner's decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ's determination that the claimant is not disabled must be upheld by the Court if the proper legal standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec'y of Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938). The record as a whole must be considered, because "[t]he court must consider both evidence that supports and evidence that detracts from the ALJ's conclusion." Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).


To qualify for benefits under Title XVI of the Social Security Act, Plaintiff must establish she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: 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). The burden of proof is on a claimant to establish disability. Terry v. 2 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). When a claimant establishes a prima facie case of 3 disability, the burden shifts to the Commissioner to prove the claimant is able to engage in other 4 substantial gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). 5


To achieve uniform decisions, the Commissioner established a sequential five-step process for 7 evaluating a claimant's alleged disability. 20 C.F.R. §§ 416.920 (a)-(f). The process requires the ALJ 8 to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of alleged 9 disability, (2) had medically determinable severe impairments (3) that met or equaled one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional capacity to perform to past relevant work or (5) the ability to perform other work existing in significant numbers at the state and national level. Id. In making these determinations, the ALJ must consider objective medical evidence and opinion (hearing) testimony. 20 C.F.R. § 416.927.

A. Relevant Medical Evidence

1. Physician's opinions

Dr. Ekram Michiel performed a psychological consultative examination on March 8, 2008.

AR at 214-18. Plaintiff's chief complaint was that she felt sad because she had "severe, constant headaches and pain" for the last two years. Id. at 214. She told Dr. Michiel: "I can't sit, I can't stand. I don't sleep good at night because I hear voices calling my name. I wake up because of my pain and I think." Id. In addition, Plaintiff informed Dr. Michiel that she did not like to be in therapy because she did not like to be in groups and around people, and said had never been employed. Id. Plaintiff reported she was "able to take care of her personal hygiene," as well as "shop, cook and do household chores with the help from her friend." Id. at 215.

Dr. Michiel observed Plaintiff "kept good eye contact throughout the interview," and her "[t]hought process was goal-directed. ARat 215-16. He performed an intellectual functioning test by asking Plaintiff to recall three objects; Plaintiff was able to recall two of the three objects in five minutes, and "[r]ecalled the third object by multiple choice." Id. at 215. "Based upon the evaluation and observation throughout the interview," Dr. Michiel opined:

I believe the claimant is able to maintain attention and concentration and to carry out ...

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