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Lisa Linnette Banta v. Michael J. Astrue

June 1, 2012


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



Plaintiff seeks review of the Commissioner's final decision denying her application for Social Security Disability Insurance Benefits ("DIB") under her account number and Widow's Insurance Benefits ("WIB") under her deceased husband's account number. The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on May 15, 2012. The Court has taken the Joint Stipulation under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed and this action is dismissed.


Plaintiff was born on December 19, 1955. (Administrative Record ("AR") 77, 230.) Her husband was born October 11, 1952, and died December 19, 2000. (AR 215.) Plaintiff earned a high school graduation equivalency diploma. (AR 92.) She worked as a cashier and a communications operator. (AR 89.) She claims to have been disabled since August 2, 2006 (AR 216, 230), although she worked from November 1, 2007, until she was let go on August 14, 2008 (AR 89).

On August 25, 2008, Plaintiff filed applications for DIB and WIB, alleging that she was unable to work because of several medical problems, including depression, migraines, seizure disorder, and high blood pressure. (AR 77, 88, 216.) After Plaintiff's application was denied, she requested a hearing before an Administrative Law Judge ("ALJ"). (AR 74-76.) It was held on September 14, 2010, at which time Plaintiff appeared with a lawyer and testified on her own behalf. (AR 230-42.) A vocational expert also testified. (AR 242-47.) On October 5, 2010, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act. (AR 12-21.) On June 24, 2011, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. (AR 4-6.) This action followed.


Under 42 U.S.C. § 405(g), a district court may review the decision of the Commissioner to deny benefits. The Court may set aside the Commissioner's decision when the ALJ's findings were based on legal error or were 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.


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. § 404.1520(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. § 404.1520(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 her ability to do basic work activities; if not, a finding of not disabled is made. § 404.1520(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. § 404.1520(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 residual functional capacity ("RFC")*fn1 to perform his past work; if so, the claimant is not disabled. § 404.1520(a)(4)(iv). The claimant has the burden of proving that she 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 she can perform other substantial gainful work available in the national economy. § 404.1520(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. Id.; 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 engaged in substantial gainful activity as an "Operator II" for Verizon from November 1, 2007, to August 14, 2008. (AR 14-15.) Thus, she was not disabled during that period. 20 C.F.R. § 404.1520(a)(4)(i). Because there were continuous 12-month periods during which Plaintiff did not engage in substantial gainful activity, however, the ALJ addressed those periods. (AR 15.) At step two, the ALJ found that Plaintiff had severe impairments of seizure disorder, hypertension, and migraine headaches but concluded that her mental impairment of depression did not cause more than "minimal limitation" in her ability to perform "basic mental work activities" and was therefore nonsevere. (Id.) The ALJ also concluded that Plaintiff's complaints of hoarding, obsessive compulsive disorder, and back pain were not supported by any objective evidence and were thus "not medically determinable." (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 17.) At step four, the ALJ found that Plaintiff had the RFC to perform "medium work"*fn2 except "lifting and/or carrying 50 pounds occasionally, 25 pounds frequently; standing and walking for 6 hours; sit for about 6 hours; occasional climbing of ladders, ropes and scaffolds; occasional stooping; and avoid even ...

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