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Glenn A. Davis v. Michael J. Astrue

October 1, 2012


The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge


Plaintiff Glenn A. Davis ("Plaintiff") seeks judicial review of the Commissioner's final decision denying his application for supplemental security income benefits ("SSI") pursuant to Title XVI of the Social Security Act. For the reasons stated below, the Commissioner's decision is remanded for further proceedings.

I. Factual and Procedural Background

Plaintiff was born on March 29, 1961. (Administrative Record ("AR") at 32, 75). He has a limited education and is able to communicate in English. (AR at 32).

On March 15, 2010, Plaintiff filed an application for SSI, alleging that he has been disabled since January 2, 2002, due to degenerative disc disease, rheumatoid arthritis, hip and low back problems, a learning impairment, and illiteracy. (AR at 139). The Social Security Administration denied Plaintiff's application initially and on reconsideration.*fn1 (AR at 95-98, 100-04).

An administrative hearing was held before Administrative Law Judge Sherwin F. Biesman ("the ALJ") on May 23, 2011. (AR at 71-90). Plaintiff, who was represented by counsel, testified at the hearing. In a written decision dated May 26, 2011, the ALJ found: Plaintiff had not engaged in substantial gainful activity since March 15, 2010, the date of the application (step one); Plaintiff has the severe impairment of degenerative disc disease of the lumbar spine (step two); Plaintiff's impairment did not meet or equal any impairment in the Listing (step three); Plaintiff retained the residual functional capacity ("RFC") to perform the full range of medium work, see 20 C.F.R. § 416.967(a); Plaintiff was unable to perform past relevant work (step four); and Medical--Vocational Guideline Rule 203.26 directed a finding of "not disabled" (step five), given Plaintiff's residual functional capacity, age, education and work experience. (AR at 23-33). Accordingly, the ALJ determined that Plaintiff had not been under a disability since the date he filed the SSI application. (AR at 33). On December 20, 2011, the Appeals Council denied review.

Plaintiff commenced this action for judicial review on March 2, 2012. The parties filed a joint statement of disputed issues on September 18, 2012. Plaintiff contends that the ALJ: (1) failed to correctly consider the opinions of Plaintiff's examining physicians; and (2) failed to correctly consider Plaintiff's testimony. (Joint Stipulation at 4-7, 10-18, 23-24). Plaintiff seeks remand for further proceedings. (Joint Stipulation at 19). The Commissioner requests that the ALJ's decision be affirmed. (Joint Stipulation at 19). The Joint Stipulation has been taken under submission without oral argument.

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or 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. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (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 720-721.

III. Discussion

A. Plaintiff's Mental Impairment

Plaintiff contends that the ALJ failed to properly consider the medical evidence concerning his borderline intellectual functioning. (Joint Stipulation at 4). The Court agrees with Plaintiff.

On August 5, 2008, Steven I. Brawer, Ph.D conducted a psychological evaluation of Plaintiff. (AR at 211-17). Plaintiff reported that he had been classified with a learning disability and was unable to read or write. (AR at 212). Plaintiff also stated that he had been depressed for several years. (AR at 212). Intelligence testing revealed that Plaintiff had a full scale IQ score of 73, which was in the borderline range of intellectual functioning. (AR at 214-15). Plaintiff's general memory functioning and working memory were also in the borderline range. (AR at 215). Plaintiff was in the mildly delayed range of visual and perceptual motor functioning and in the low average range for short-term visual memory for designs. (AR at 215-16). Plaintiff displayed a "mild-to-moderate impairment" on complex tasks involving mental flexibility in shifting sets. (AR at 264).

Dr. Brawer determined that Plaintiff was functioning in the borderline range of intellectual ability. (AR at 216). Dr. Brawer diagnosed Plaintiff with depressive disorder, NOS, and learning disorder, NOS. (AR at 216). Dr. Brawer opined that Plaintiff "would be able to learn a simple, repetitive task and may be able to perform some detailed, varied or complex nonverbal tasks." (AR at 216). Dr. Brawer further found that Plaintiff demonstrated mildly diminished attention, concentration, persistence and pace in completing tasks, and that Plaintiff may have ...

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