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Brian C. Epps v. Michael J. Astrue

December 18, 2012

BRIAN C. EPPS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

O

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER

I. PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision denying his application for Social Security Supplemental Security Income benefits ("SSI"). 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 November 26, 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 July 29, 1969. (Administrative Record ("AR") 51.) He has a ninth-grade education. (AR 429.) He has worked as a general laborer and sign exhibitor. (AR 122.)

On June 10, 2009, Plaintiff filed his SSI application, alleging that he had been unable to work since December 1, 2006, because of bipolar disorder, leg pain, and back pain. (AR 51-79.) After Plaintiff's application was denied on initial review and reconsideration, he requested a hearing before an Administrative Law Judge ("ALJ"). (AR 37-47.) A hearing was held on April 29, 2011, at which Plaintiff, who was represented by counsel, appeared and testified on his own behalf. (AR 420-36.) Medical Expert Steven Gerber and Vocational Expert ("VE") Alan Ey also testified. (Id.) In a written decision issued on July 14, 2011, the ALJ determined that Plaintiff was not disabled. (AR 14-23.) On January 10, 2012, the Appeals Council denied Plaintiff's request for review. (AR 4-6.) 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 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 (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. § 416.920(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 must be denied. § 416.920(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 his ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. § 416.920(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 conclusively presumed and benefits are awarded. § 416.920(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 his past work; if so, the claimant is not disabled and the claim must be denied. § 416.920(a)(4)(iv). 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 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 he can perform other substantial gainful work available in the national economy. § 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis.

§ 416.920; 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 June 10, 2009, the date of Plaintiff's application. (AR 16.) At step two, the ALJ concluded that Plaintiff had the severe impairments of bilateral femur fractures and schizoaffective disorder. (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 17-18.) At step four, the ALJ found that Plaintiff retained the RFC to lift twenty pounds occasionally and ten pounds frequently; sit for six hours and stand or walk for four hours, with normal breaks, during an eight-hour workday; only occasionally perform postural activities except never climb ladders, ropes, or scaffolds; only perform simple tasks with simple work-related decisions; and never interact with the general public and only occasionally interact with co-workers and supervisors. (AR 18.) The ALJ found that Plaintiff had no past relevant work. (AR 21.) At step five, the ALJ concluded that jobs existed in significant numbers in the national economy that Plaintiff could perform. (AR 22.) Accordingly, the ALJ determined that Plaintiff was not disabled. (AR 22-23.)

V. DISCUSSION

Plaintiff alleges that the ALJ erred in failing to properly consider (1) the opinion of examining physician Concepcion A. Enriquez and (2) Plaintiff's ...


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