Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Natividad S. Apodaca v. Michael J. Astrue

September 25, 2012

NATIVIDAD S. APODACA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



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

I. PROCEEDINGS

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER

Plaintiff seeks review of the Commissioner's final decision denying her application for Social Security disability insurance benefits ("DIB"). 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 August 23, 2012, which the Court has taken 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 February 3, 1968. (Administrative Record ("AR") 82.) She has an 11th-grade education. (AR 87, 359.) From 1999-2001, Plaintiff worked as a crossing guard; from 1999-2003 and 2005-07 she worked for various employers as a cook helper; from 2004-07 she worked as a babysitter; and from 2007-08 she worked for EZ Lube as a store laborer, performing different functions. (AR 98, 361-62, 375-76, 380.) On November 30, 2007, Plaintiff injured her spine and neck after slipping and falling at work, though she apparently continued to work for some time afterward. (AR 65 (worker's compensation compromise and release form, noting November 30, 2007, as disability start date), 82 (noting "alleged onset date" of November 30, 2007), 361 (explaining that Plaintiff tried to work for "a couple of months" after injury).)*fn1

On April 26, 2010, Plaintiff filed a DIB application, alleging that she had been unable to work since November 30, 2007, because of neck and back injuries, knee pain, a head injury, and shoulder pain. (AR 82-86.) After Plaintiff's application was denied, she requested a hearing before an Administrative Law Judge ("ALJ"). (AR 35.) A hearing was held on March 17, 2011, at which Plaintiff appeared and testified on her own behalf. (AR 353-94.) Plaintiff's boyfriend, Christopher Villasenor, and Vocational Expert ("VE") Freeman Leeth also testified. (AR 374-94.) In a written decision issued on March 25, 2011, the ALJ determined that Plaintiff was not disabled.

(AR 17-28.) On October 6, 2011, the Appeals Council denied Plaintiff's request for review. (AR 7-9.) 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 not disabled 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")*fn2 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 April 1, 2008.*fn3 (AR 22.) At step two, the ALJ concluded that Plaintiff had the severe impairments of lower back and neck pain secondary to degenerative disc disease and obesity. (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 medium work*fn4 with the additional limitations that Plaintiff can perform work that does not require climbing ladders, ropes or scaffolds, or crawling; and no more than occasional stooping or crouching. [Plaintiff] is precluded from performing overhead work, and can posture her neck in a static position for no more than 10 minutes

(i.e., without an opportunity to otherwise flex, extend or rotate her neck while remaining on task). (AR 22-23.) Based on the VE's testimony, the ALJ concluded that Plaintiff was able to perform her past work as a child monitor. (AR 26.) In the alternative, the ALJ found that Plaintiff could also perform the jobs of parking-lot booth attendant, security guard, labeler/ticketer, sorter, stuffer, and assembler. (AR 26-27.) The ALJ concluded that jobs existed in significant numbers in the national economy that Plaintiff could perform. (AR 27.) Accordingly, the ALJ determined that Plaintiff was not disabled. (AR 27-28.)

V. DISCUSSION

Plaintiff alleges that the ALJ erred in (1) determining that she could perform jobs that may involve overhead reaching and (2) failing to properly consider Plaintiff's testimony regarding her subjective symptoms. (J. Stip at 4.)

A. The ALJ Did Not Err in Failing to Inquire Further About a Potential Conflict Between the Dictionary of Occupational Titles and the VE's Testimony Because No Conflict Existed

Plaintiff contends that the ALJ erred in determining she could perform the jobs the VE identified because he did not first inquire about a potential conflict between her testimony and the Dictionary of Occupational Titles ("DOT"). (J. Stip. at 5-12.) Plaintiff asserts that an unresolved conflict existed because the jobs the VE testified Plaintiff could perform are all described in the DOT as requiring a level of reaching ranging from "occasional" to "constant" and may include overhead reaching, whereas the ALJ found that Plaintiff was "precluded from performing overhead work." (J. Stip. at 5-12.) As explained below, Plaintiff misapprehends ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.