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Alan James Frear v. Michael J. Astrue

February 6, 2013

ALAN JAMES FREAR, 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 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). The matter is before the Court on the parties' Joint Stipulation, filed January 22, 2013, 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 December 22, 1955. (Administrative Record ("AR") 53.) He finished high school (AR 110), though there is some debate over whether he did so while enrolled in special education classes (compare AR 39 (Plaintiff testifying that he took special education classes during high school in "like math, history, English") with AR 110 (disability form indicating that Plaintiff was not enrolled in special education classes during high school)).*fn1 He is homeless (AR 128) and has not worked since the early 1990s at the latest (AR 107).

Plaintiff filed an application for SSI benefits on May 30, 2008 (AR 89), claiming that he had been disabled since August 1, 1996 (AR 102), on account of "dyslexia/bad back/can't read" (AR 107). After Plaintiff's application was denied, he requested a hearing before an ALJ. (AR 46.) A hearing was held on January 5, 2010, at which Plaintiff, who was represented by counsel, appeared and testified. (AR 31, 37-40.) In a written decision issued on February 24, 2010, the ALJ determined that Plaintiff was not disabled. (AR 28.) On April 9, 2012, the Appeals Council denied Plaintiff's request for review. (AR 1.) 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, 481F.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 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")*fn2 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 May 30, 2008, the application date. (AR 22.) At step two, the ALJ concluded that Plaintiff had the severe impairments of "degenerative disc disease of the lumbar spine, obesity, borderline intellectual functioning, and dyslexia." (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 "light work"*fn3 with certain additional limitations, including only those "activities involving no more than simple tasks with simple work-related decisions." (AR 24.) At step five, 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 28.)

V. RELEVANT FACTS

The record does not contain any treatment notes or other medical evidence of any kind for Plaintiff other than that generated as part of his SSI claim. On July 18, 2008, consulting clinical psychologist Rosa Colonna examined Plaintiff and administered a series of tests to him. (AR 149-53.) She determined that he had a verbal IQ of 76, a performance IQ of 70, and a full scale IQ of 72. (AR 151.) She concluded that his "[c]urrent intellectual functioning is borderline range" but that he could work. (AR 151-53.) On July 10, 2008, Dr. Seung Ha Lim examined Plaintiff. (AR 155-58.) Based on Plaintiff's pain on motion, back tenderness, and limited range of motion ...


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