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Saeed Khan v. Carolyn W. Colvin

February 20, 2013

SAEED KHAN, PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff brings this action for judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("Act").*fn1 In his motion for summary judgment, plaintiff principally contends that the Commissioner erred by finding that plaintiff was not disabled from October 7, 1999, through the date of the final administrative decision. (Dkt. No. 23.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 25.) For the reasons that follow, plaintiff's motion for summary judgment is denied, the Commissioner's cross-motion for summary judgment is granted, and judgment is entered for the Commissioner.

I. BACKGROUND

Plaintiff was born in Pakistan on April 1, 1962, has a tenth-grade education, and previously worked as a forklift operator, line worker, warehouse worker, and mail carrier.*fn2

(Administrative Transcript ("AT") 273, 277, 380.) On February 15, 2005, plaintiff applied for DIB and SSI, alleging that he was unable to work as of October 7, 1999. (AT 262-66.) On May 20, 2005, the Commissioner determined that plaintiff was not disabled. (AT 225.) Upon plaintiff's request for reconsideration, the determination was affirmed on November 29, 2005. (AT 224.) Subsequently, plaintiff requested a hearing before an administrative law judge ("ALJ"), which took place on May 9, 2007. (AT 374.)

In a decision dated June 11, 2007, the ALJ determined that plaintiff had not been under a disability, as defined in the Act, from October 7, 1999, through the date of that decision. (AT 209-17.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on August 31, 2007. (AT 206-08.) Thereafter, plaintiff filed an action in federal district court to obtain judicial review of the Commissioner's final decision. On October 3, 2008, the court approved the parties' stipulation for a voluntary remand for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (AT 428-29.)

While proceedings related to plaintiff's February 15, 2005 application remained pending, plaintiff filed a subsequent claim for DIB and SSI on November 20, 2007. This application was denied initially on January 28, 2008, and on reconsideration on August 15, 2008.

Plaintiff filed a request for hearing on August 28, 2008. Thereafter, plaintiff's remanded 2005 application and the 2007 application were consolidated. (AT 407.)

On remand, the ALJ held administrative hearings on October 15, 2009; January 21, 2010; and October 5, 2010. (AT 580-91, 592-99, 600-35.) At the second hearing on January 21, 2010, the ALJ ordered a psychological evaluation for plaintiff, and granted plaintiff's counsel's request for a Punjabi interpreter, which was provided at the third hearing on October 5, 2010. (AT 598.) In a decision dated December 14, 2010, the ALJ determined that plaintiff had not been under a disability, as defined in the Act, from October 7, 1999, through the date of that decision. (AT 403-22.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on August 31, 2011. (AT 396-98.) Thereafter, plaintiff filed this action in federal district court on November 4, 2011, to obtain judicial review of the Commissioner's final decision. (Dkt. No. 1.)

II. ISSUES PRESENTED

Plaintiff has raised the following issues: (1) whether the ALJ failed to properly credit plaintiff's testimony regarding his pain and functional limitations; and (2) whether the ALJ erroneously assessed plaintiff's English literacy and communication skills.

III. LEGAL STANDARD

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance.

Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence Connett v. as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

IV. DISCUSSION

A. Summary of the ALJ's Findings

The ALJ evaluated plaintiff's entitlement to DIB and SSI pursuant to the Commissioner's standard five-step analytical framework.*fn3 As an initial matter, the ALJ found that plaintiff remained insured for purposes of DIB through December 31, 2004. (AT 409.) At the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since October 7, 1999. (Id.) At step two, the ALJ determined that plaintiff had the following severe impairments: degenerative disc disease of the cervical spine with central stenosis; degenerative disc disease and bulging disc of the lumbosacral spine with radiculopathy; diabetes mellitus II; hypertension; and depression. (AT 410.) However, at step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 410-12.) Before proceeding to step four, the ALJ assessed plaintiff's residual functional capacity ("RFC") as follows:

[T]he undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) in that he can lift and carry, push/pull occasionally 20 pounds, frequently 10 pounds; can sit eight hours of an eight hour day with normal breaks; and can stand and walk six hours of an eight hour day with normal breaks. However the claimant can do no climbing of ladders, ropes or scaffolds; can only occasionally do stooping, crouching, kneeling and crawling; has borderline intellectual functioning; can communicate in English and is literate in the English language functioning at better than the 6th-8th grade level (see forms he completed in A case); and has the following additional limitations:

* Slightly limited ability to understand, remember and carry out short simple job instructions;

* Moderately limited ability to understand, remember and carry out ...


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