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Yolanda Basquez v. Carolyn W. Colvin

April 1, 2013

YOLANDA BASQUEZ, PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. PROCEEDINGS

Plaintiff filed this action on June 21, 2012, seeking review of the Commissioner's denial of her application for Supplemental Security Income payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on July 13, 2012. Pursuant to the Court's Order, the parties filed a Joint Stipulation on February 28, 2013, that addresses their positions concerning the disputed issue in the case. The Court has taken the Joint Stipulation under submission without oral argument.

II. BACKGROUND

Plaintiff was born on August 1, 1956. [Administrative Record ("AR") at 30.] She has at least a sixth grade education [AR at 80, 609],*fn1 and has no past relevant work. [AR at 22.]

On November 17, 2004, plaintiff protectively filed an application for Supplemental Security Income payments,*fn2 alleging that she has been unable to work since August 2, 2001,*fn3 due to hepatitis C, arthritis, problems with her back, right shoulder, and left arm, and depression. [AR at 32-33, 50-55, 67-69, 135-38.] After her application was denied initially and on reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 43-60.] A hearing was held on August 25, 2009, at which time plaintiff's counsel appeared on her behalf and a vocational expert testified. [AR at 597-604.] On September 11, 2009, the ALJ determined that plaintiff was not disabled. [AR at 564-72.] Plaintiff requested review of that decision. On August 11, 2010, the Appeals Council granted plaintiff's request for review, vacated the ALJ's decision, and remanded to the ALJ for further administrative proceedings. [AR at 559-60.] On December 6, 2010, a second hearing before the ALJ was held, at which time plaintiff appeared with counsel and testified on her own behalf. The same vocational expert also testified. [AR at 605-27.] On January 7, 2011, the ALJ again determined that plaintiff was not disabled. [AR at 17-23.] On April 19, 2012, the Appeals Council denied plaintiff's request for review. [AR at 9-13.] This action followed. /

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering both adverse and supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258.

IV. THE EVALUATION OF DISABILITY

Persons 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 twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257.

A. THE FIVE-STEP EVALUATION PROCESS

The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. ยง 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 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 is denied. Id. If the claimant is not currently 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 her ability to do basic work activities; if not, a finding of non-disability is made and the claim is denied. Id. 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. Id. 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" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this ...


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