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Elvia Landeros v. Michael J. Astrue

July 6, 2012

ELVIA LANDEROS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Jean P. Rosenbluthu.s. Magistrate Judge

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER

I. PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision denying her application for Supplemental Security Income ("SSI"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed June 5, 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.

II. BACKGROUND

Plaintiff was born on September 17, 1962. (Administrative Record ("AR") 76.) She has a third-grade education and does not speak English. (AR 286, 293, 479-81.) She claims to have been disabled since November 30, 1997, because of several impairments, including a fractured neck, knee, shoulder, and hip; "severe" anxiety and depression; stomach ulcer; shortness of breath; and sinus problems. (AR 83.)

On April 7, 2006, Plaintiff filed an initial application for SSI. (AR 25.) It was denied based on "excess resources" because the ALJ determined she owned property in Mexico. (Id.) On March 7, 2007, Plaintiff filed a second SSI application. (Id.) That application was denied because the ALJ found that she was not a citizen or legal resident of the United States. (Id.) While her appeal of that decision was still pending, Plaintiff protectively filed a third application for SSI, on May 8, 2008.*fn1 (Id.) After that application was denied, she requested a hearing before an Administrative Law Judge ("ALJ"), which was held on July 14, 2010. (AR 477-507.) Plaintiff, who was represented by counsel, testified at the hearing with the assistance of a Spanish-language interpreter; vocational expert ("VE") Rheta B. King also testified. (AR 25, 479-507.)*fn2

On November 19, 2010, the ALJ denied Plaintiff's claim. He first found that Plaintiff was a lawful permanent resident of the United States and thus her March 7, 2007 SSI application was erroneously denied; he therefore reopened that application and conducted his analysis based on the March 7, 2007 filing date. (AR 26.) He then determined that Plaintiff had the severe impairments of "facet hypertrophy and levoscoliosis of the lumbosacral spine, degenerative changes of the right knee, uterine fibroid, an adjustment disorder with depressed mood[,] and borderline intellectual functioning" and noted that "by July 2008, she is obese." (AR 28 (citations omitted).) He found, however, that she retained the residual functional capacity ("RFC")*fn3 to perform "the full range of medium work as defined in 20 CFR 416.967(c) (lift and carry 50 pounds occasionally and 25 pounds frequently, stand and/or walk for six out of eight hours, and sit for six hours in an eight-hour workday)" (AR 31); thus, she was not disabled (AR 38).

On January 10, 2011, after retaining a new attorney, Plaintiff requested review by the Appeals Council. (AR 16-21.) On June 1, 2011, Plaintiff submitted an additional brief to the Council. (AR 468-70.) On July 8, 2011, the Council considered the additional brief but denied Plaintiff's request for review. (AR 5-7.) The Council ordered that the additional brief be made part of the administrative record. (AR 10.) This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's findings and decision should be upheld if they are free of legal error and are supported by substantial evidence based on the record as a whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. 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 ALJ 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 ALJ 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 ALJ 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 non-disability is made and the claim must be denied. § 416.920(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the ALJ 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 or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the ALJ to determine whether the claimant has sufficient RFC to perform her past work; if so, the claimant is not disabled and the claim is denied. § 416.920(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 ALJ then bears the burden of establishing that the claimant is not disabled because she can perform other substantial gainful work 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 March 7, 2007, the date of her reopened SSI application. (AR 28.) At step two, the ALJ concluded that Plaintiff had the severe impairments of "facet hypertrophy and levoscoliosis of the lumbosacral spine, degenerative changes of the right knee, uterine fibroid, an adjustment disorder with depressed mood[,] and borderline intellectual functioning" and noted that "by July 2008, she is obese." (Id. (citations omitted).) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled any of the impairments in the Listing. (AR 30.) At step four, the ALJ found that Plaintiff had the RFC to perform "the full range of medium work as defined in 20 CFR 416.967(c) (lift and carry 50 pounds occasionally and 25 pounds frequently, stand and/or walk for six out of eight hours, and sit for six hours in an eight-hour workday)." (AR 31.) At step five, the ALJ found that Plaintiff was capable of performing her ...


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