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Victor M. Rubino v. Carolyn W. Colvin

March 21, 2013

VICTOR M. RUBINO, PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



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

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER

I. PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision denying his applications for Social Security disability insurance benefits ("DIB") and 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 October 25, 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 October 23, 1960. (AR 282.) He has a high-school education and previously worked as an electrician. (AR 37, 76, 312.)

On November 29, 2005, Plaintiff filed applications for DIB and SSI. (AR 150, 282-87.) Plaintiff alleged that he had been unable to work since November 15, 1999, because of hepatitis B and C, psoriasis, renal problems, severe joint pain, and migraine headaches, among other things. (AR 39-40, 311.)

After Plaintiff's applications were denied, he requested a hearing before an ALJ. (AR 194.) A hearing was held before ALJ Thomas J. Gaye on August 22, 2008, at which Plaintiff, who was represented by counsel, appeared and testified, as did vocational expert ("VE") Alan L. Ey. (AR 30-57.) In a written decision issued September 22, 2008, ALJ Gaye found that Plaintiff was not disabled. (AR 150-58.) On May 21, 2009, the Appeals Council granted Plaintiff's request for review, vacated the hearing decision, and remanded the case for further review. (AR 159-62.)

Another hearing was held, before ALJ David M. Ganly, on August 26, 2009, at which Plaintiff, who was represented by counsel, appeared and testified. (AR 58-95.) A medical expert, Dr. Samuel Landau, and VE David A. Rinehart also appeared and testified. (Id.) In a written decision issued October 27, 2009, ALJ Ganly found that Plaintiff was not disabled. (AR 166-73.) On June 22, 2010, the Appeals Council again granted Plaintiff's request for review, vacated the hearing decision, and remanded the case for further review. (AR 174-76.)

A third hearing was held, before ALJ Ganly, on November 30, 2010, at which Plaintiff, who was represented by counsel, appeared and testified.*fn2 (AR 96-130.) Also appearing and testifying were medical expert Landau; psychological expert Joseph Malancharuvil, Ph.D.; and VE Sandra M. Fioretti. (Id.) In a written decision issued February 4, 2011, ALJ Ganly found that Plaintiff was not disabled.*fn3 (AR 14-24.) On December 20, 2011, the Appeals Council denied Plaintiff's request for review. (AR 1-5.) 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 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. §§ 404.1520(a)(4), 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. §§ 404.1520(a)(4)(i), 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. §§ 404.1520(a)(4)(ii), 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. §§ 404.1520(a)(4)(iii), 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")*fn4 to perform his past work; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 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. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520, 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 November 15, 1999. (AR 16.) At step two, the ALJ concluded that Plaintiff had the severe impairments of "hepatitis B and a healed hepatitis C infection; chronic kidney disease stage one; healed bacterial endocarditis; psoriasis; depressive disorder, not otherwise specified; psychophysical reactions with chronic pain; personality disorder, not otherwise specified; and history of substance addiction, on methadone for maintenance." (AR 16-17.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 17.) At step four, the ALJ found that Plaintiff retained the RFC to perform "a range of light work." (AR 18.) Based on the VE's testimony, the ALJ concluded that Plaintiff could not perform his past work as an electrician but could perform jobs that existed in significant numbers in the national economy. (AR 22-23.) Accordingly, the ALJ determined that Plaintiff was not disabled. (AR 23-24.)

V. RELEVANT FACTS

From July 31 to August 8, 2005, Plaintiff was hospitalized with primary diagnoses of "febrile illness," bacteremia, and "rule out" meningitis and secondary diagnoses of hepatitis C and heroin dependence. (AR 605-18.) At discharge, Plaintiff's disability status was noted as "no disability." (AR 605.)

On August 19, 2005, a Riverside County Regional Medical Center ("RCRMC") doctor noted that Plaintiff's bacteremia was resolved and he was "doing well except for occasional severe headache." (AR 421.) The doctor noted that Plaintiff had been using heroin occasionally for pain relief and was interested in detox. (Id.)

From October 25 to November 14, 2005, Plaintiff was hospitalized with primary diagnoses of acute renal failure, fevers, and "rule out" endocarditis and secondary diagnoses of hepatitis C and B, left-arm cellulitis, hypertension, and anemia. (AR 550-604.) At discharge, Plaintiff's disability status was noted to be "[n]o disability." (AR 550.)

From November 18 to December 5, 2005, Plaintiff was hospitalized with primary diagnoses of methicillin-resistant staphylococcus aureus ("MRSA") and bacteremia and secondary diagnoses of infective endocarditis, chronic renal failure, anemia, and hypertension.*fn5 (AR 427-98, 533-49.) At discharge, Plaintiff was "stable with normal temperature and stable BUN & creatinine."*fn6 (AR 427.)

On December 8, 2005, an RCRMC doctor noted that Plaintiff had infective endocarditis, MRSA, bacteremia, a skin infection, gastroesophageal disease, chronic anemia, and acute renal failure. (AR 419-20.) The doctor noted that Plaintiff was "doing good" and had stable "BUN/creatinine." (Id.) On January 6, 2006, an RCRMC doctor noted that Plaintiff's infective endocarditis was improved. (AR 417-18.)

On February 23, 2006, an RCRMC doctor assessed Plaintiff with a history of MRSA, endocarditis, hepatitis B and C, intravenous drug use, gastroesophageal reflux disease, and tobacco abuse; the doctor also noted that Plaintiff had suffered "renal failure while in hospital." (AR 415.) The doctor found that Plaintiff's hepatitis C viral load was "not detectable." (AR 416.)

On March 30, 2006, an RCRMC doctor noted that Plaintiff was "feeling well" and had a history of hepatitis C, anemia, and endocarditis. (AR 413.) On April 20, 2006, a lab report showed that Plaintiff's hepatitis C viral load was less than 50, which was within the normal reference range. (AR 422.) Plaintiff tested positive for hepatitis B. (AR 423.) On April 26, 2006, an RCRMC doctor noted that Plaintiff "doesn't have hep C based on viral load" but "does have" hepatitis B. (AR 413.)

On July 12, 2006, an RCRMC doctor noted that Plaintiff had MRSA and endocarditis, hepatitis C with an "RNA" of less than 50,*fn7 hepatitis B, normal liver function tests, and improved "ARF," or acute renal failure. (AR 411-12.) ...

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