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Kenneth Tate v. Michael J. Astrue

January 17, 2013


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for supplemental security income ("SSI") pursuant to Title XVI of the Social Security Act. 42 U.S.C. §§ 401 et seq. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


Plaintiff was born in 1952 and has no past relevant work. (Administrative Record ("AR") 18, 91, 202.) Plaintiff filed an application for SSI on April 22, 2008, and contends that his ability to work is precluded due to a "torn left knee," sleep apnea, high blood pressure, emotional instability, and diabetes. (AR 95, 212.)

On April 22, 2008, Plaintiff was interviewed by X. Moua for purposes of completing a disability application. (AR 91-93.) A further disability report, Form SSA-3368, was completed. (AR 94-100.) Form SSA-3368 is type-written, and it contains no signature; in the portion of the form where the name of the person completing the form is to be identified (AR 100), no name or date is provided. It is unclear whether Plaintiff completed Form SSA-3368 himself or whether it was completed by the interviewer, X. Moua. Form SSA-3368 indicates that Plaintiff completed the 12th grade in 1971. (AR 99.)

On August 22, 2008, Plaintiff was referred by the agency to Aimee V. Riffel, Ph.D., for the completion of a psychological evaluation. (AR 141-45.) In conducting the evaluation, Dr. Riffel provided the sources of the information used as part of the evaluation: "[d]atabase for this report comes from review of available medical records provided by DDS. Other information was obtained with clinical interview, psychological testing, and mental status exam." (AR 141.) Dr. Riffel indicates that Plaintiff's SSA-3368 Form was reviewed as part of the medical records provided by DDS. (AR 141.) In setting out Plaintiff's educational history, Dr. Riffel indicated that Plaintiff completed high school, graduating from Cam Academy in Chicago, Illinois, in 1971. (AR 143.)

The Commissioner denied Plaintiff's application initially and again on reconsideration. (AR 37-40, 43-47.) Consequently, on June 10, 2009, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 48.) A hearing was held on April 13, 2010, before ALJ Michael J. Haubner. (AR 194-224.) At the hearing, Plaintiff testified that the highest grade he completed in school was the 10th grade. (AR 202.) The ALJ asked whether Plaintiff had a GED or other high school equivalency; Plaintiff responded that he did not. (AR 202.) Near the end of the hearing, the ALJ asked Plaintiff whether he completed a GED while he was in prison; Plaintiff answered that he had not. (AR 222.)

On May 19, 2010, the ALJ issued a decision that found Plaintiff not disabled from April 22, 2008, through the date of the ALJ's decision. (AR 12-19.) Specifically, the ALJ found that Plaintiff

(1) has not engaged in substantial gainful activity since April 22, 2008; (2) has the following severe impairment: history of lateral and medial meniscus tear of the left knee with some degenerative changes; (3) does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) has the residual functional capacity ("RFC")*fn3 to lift and carry 50 pounds occasionally and 25 pounds frequently; to stand and/or walk six hours and sit six hours in an eight-hour workday; and to frequently climb ladders, ropes, and scaffolds, kneel, and crawl; (5) has no past relevant work; (6) was born on January 30, 1952, and was 56 years old, which is defined as an individual of advanced age; (7) has at least a high school education and is able to communicate in English; (8) has no transferability of job skills because he has no past relevant work; and (9) retains the ability to perform jobs that exist in significant numbers in the national economy. (AR 12-19.)

On June 3, 2010, Plaintiff sought review of this decision before the Appeals Council. (AR 7-8.) The Appeals Council denied review on May 19, 2011. (AR 9-11.) Therefore, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 416.1481.

Plaintiff filed a complaint before this Court on September 28, 2011. (Doc. 1.) Plaintiff does not challenge the ALJ's RFC assessment. Rather, Plaintiff's sole argument on appeal is that he did not graduate from high school and thus, given his age and his RFC as assessed by the ALJ, he is disabled under the Medical-Vocational Guidelines ("Grids"). Grid Rule 203.14 provides that, for a person of advanced age, who (1) is unskilled or has no previous work experience, (2) is limited to medium work, and (3) has a high school education ore more, such a person is not disabled. Plaintiff argues that, because he did not graduate from high school, Grid Rule 203.10 applies instead, and he must be determined to be disabled.


The ALJ's decision denying benefits "will be disturbed only if that decision is not supported by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). In reviewing the Commissioner's decision, the Court may not substitute its judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must determine whether the Commissioner applied the proper legal standards and whether substantial ...

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