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Clifford D. Durkee v. Michael J. Astrue

August 2, 2012

CLIFFORD D. DURKEE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. PROCEEDINGS

Plaintiff filed this action on August 10, 2011, seeking review of the Commissioner's denial of his application for Disability Insurance Benefits. The parties filed Consents to proceed before the undersigned Magistrate Judge on August 25, 2011, and August 30, 2011. Pursuant to the Court's Order, the parties filed a Joint Stipulation on May 7, 2012, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

II. BACKGROUND

Plaintiff was born on September 27, 1960. [Administrative Record ("AR") at 48.] He has a tenth grade education, and has past relevant work experience as a bill poster and a hand collator. [AR at 40, 126, 131.]

Plaintiff filed an application for Disability Insurance Benefits on April 20, 2009, alleging that he has been unable to work since April 30, 2009,*fn1 due to back surgery, hypertension, and chronic lung problems. [AR at 48, 122-24, 125-32.] After his application was denied initially, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 59-63, 66.] A hearing was held on September 20, 2010, at which time plaintiff appeared with counsel and testified on his own behalf. [AR at 23-47.] A vocational expert ("VE") also testified. [AR at 39-44.] On September 24, 2010, the ALJ determined that plaintiff was not disabled. [AR at 11-19.] On June 20, 2011, the Appeals Council denied plaintiff's request for review. [AR at 1-5, 7.] This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258.

IV. THE EVALUATION OF DISABILITY

Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a 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 twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257.

A. THE FIVE-STEP EVALUATION PROCESS

The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. § 404.1520; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 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. Id. If the claimant is not currently 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 and the claim is denied. Id. 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, App. 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform his past work; if so, the claimant is not disabled and the claim is denied. Id. 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 this burden, a prima facie case of disability is established. 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. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. § 404.1520; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial gainful activity since April 30, 2009, the amended alleged onset date. [AR at 13.] At step two, the ALJ concluded that plaintiff has the following impairments that, in combination, are severe: bronchial asthma, hypertension, hypercholesterolemia, lumbar disc herniation and status post back surgery, degenerative joint disease, obesity, and obstructive pulmonary disease. [AR at 13-14.] At step three, the ALJ determined that plaintiff's impairments do not meet or equal any of the impairments in the Listing. [AR at 14.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC")*fn2 to perform "light work," as defined in 20 C.F.R. § 404.1567(b),*fn3 with the following limitations: "[plaintiff can] stand and walk for four hours in an eight-hour workday, sit for four hours in an eight-hour workday, occasionally engage in postural activities, and ... have moderate exposure to fumes and other similar environment factors." [Id.] At step four, the ALJ determined that plaintiff was not capable of performing his past relevant work. [AR at 17.] At step five, "based on the testimony of the vocational expert," and "using the ...


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