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Margarita Mosqueda v. Michael J. Astrue

August 3, 2012

MARGARITA MOSQUEDA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS

I. PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision denying her application for Social Security disability insurance benefits. The parties filed a Joint Stipulation on July 23, 2012. The Court has taken the Joint Stipulation under submission without oral argument. For the reasons stated below, the Commissioner's decision is reversed and this matter is remanded for further proceedings.

II. BACKGROUND

Plaintiff was born on July 9, 1963. (Administrative Record ("AR") 118.) She has a third-grade education. (AR 127.) Plaintiff worked in a nursery from 1996 until March 2007, when she was injured on the job. (AR 53-54; 123.) She has not worked since then. (AR 53.)

On April 22, 2008, Plaintiff filed an application for disability insurance benefits, alleging that she had been unable to work since March 15, 2007, because of pain in her neck and right back, shoulder, and hand. (AR 112, 122.) After Plaintiff's application was denied initially and on reconsideration, she requested a hearing before an Administrative Law Judge ("ALJ"). (AR 81.) An initial hearing was held on March 3, 2010, at which Plaintiff appeared with counsel and a translator and testified on her own behalf. (AR 49-60.) A vocational expert also testified. (AR 60-65.) In a decision issued on March 26, 2010, the ALJ determined that Plaintiff was not disabled. (AR 42.) On August 23, 2011, the Appeals Council denied Plaintiff's request for review. (AR 7-15.) 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 ALJ's findings and decision should be upheld if they are free from 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. 1996). "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 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. § 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 non-disability is made and the claim is denied. § 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 established and benefits are awarded. § 404.1520(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 Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC")*fn1 to perform her past work; if so, the claimant is not disabled and the claim must be denied. § 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 in the 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 had not engaged in any substantial gainful activity since March 15, 2007, the onset date of her alleged disability. (AR 35.) At step two, the ALJ concluded that Plaintiff had the severe impairments of right shoulder impingement, disc protrusion with cord compression, ulnar neuropathy, and depression. (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (Id.) At step four, the ALJ found that Plaintiff retained the RFC to perform a range of light work*fn2 with certain additional limitations. (AR 36.) He also found that she was "not able to communicate in English, and is considered in the same way as an individual who is illiterate in English."*fn3 (AR 41.) The ALJ concluded that Plaintiff was unable to perform her past relevant work as a horticultural worker.

(Id.) At step five, the ALJ found that jobs existed in significant numbers in the national economy that Plaintiff could perform. (AR 54.) The ALJ agreed with the vocational expert that Plaintiff could perform such "representative occupations" as an electrical accessories assembler (Joint Stip. Ex. DOT; DOT 729.687-010, 1991 WL 679733), which is "light, unskilled work," and a film touch-up inspector, DOT 726.684-050, 1991 WL 679601, which ...


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