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Steven Pound v. Michael J. Astrue

October 2, 2012

STEVEN POUND, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL ) SECURITY ADMINISTRATION,
DEFENDANT.



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

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER

I. PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision denying his 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 September 4, 2012, which the Court has taken under submission without oral argument. For the reasons discussed below, the Commissioner's decision is affirmed and this action is dismissed.

II. BACKGROUND

Plaintiff was born on March 30, 1951. (Administrative Record ("AR") 84.) He has a GED and is able to communicate in English. (AR 137, 142.) Plaintiff has at various times claimed different onset dates for his alleged disability, but they are all in the first half of 2008. (See, e.g., AR 127 (Jan. 2, 2008), AR 138 (May 5, 2008).)

On October 17, 2008, Plaintiff filed his application for DIB. (AR 127-31.) After it was denied, he requested a hearing before an Administrative Law Judge ("ALJ"), which was held on September 8, 2010. (AR 22.) Plaintiff, who was represented by counsel, testified at the hearing. (AR 26-57.)

On November 5, 2010, the ALJ denied Plaintiff's claim. (AR 10-18.) She first found that Plaintiff last met the insured status requirements of the Social Security Act on December 31, 2009, and had not engaged in substantial gainful activity from the alleged onset date of May 5, 2008, to that date. (AR 12.) She then determined that Plaintiff had the severe impairment of "thoracolumbar spine strain." (Id.) She found, however, that as of the date last insured, Plaintiff retained the residual functional capacity ("RFC")*fn1 to perform "medium work," with some limitations. (AR 13.) "Specifically, the claimant can lift 50 pounds occasionally and 25 pounds frequently; the claimant can sit, stand and/or walk for 6 hours out of an 8-hour workday with frequent ladders, ropes and scaffolds; the claimant is limited to frequent posturals and due to the side effects of medication, is limited to work involving 1 to 2 step instructions." (Id.) She further found that for a variety of reasons, Plaintiff was only partially credible. (AR 13-15.) She agreed with the VE that Plaintiff was capable of performing the jobs of small-products assembler, cleaner, products deliverer, and house cleaner and that those jobs existed in significant numbers in the national and regional economies; thus, the ALJ found Plaintiff not disabled. (AR 17.)

On December 10, 2010, Plaintiff requested review by the Appeals Council. (AR 5-6.) On November 17, 2011, the Council denied Plaintiff's request for review. (AR 1-4.) 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 or ALJ'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. 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 because of 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 Commissioner (or 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 ...


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