United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION
LARRY ALAN BURNS, District Judge.
Seltser challenges the denial of his claim for disability benefits under the Social Security Act. The challenge was referred to Magistrate Judge Gallo for a Report and Recommendation pursuant to 28 U.S.C. § 636, after which Seltser and the Commissioner filed cross-motions for summary judgment. Judge Gallo issued his R&R, finding that Seltser's summary judgment motion should be denied and the Commissioner's summary judgment motion should be granted.
The Court reviews an R&R on dispositive motions pursuant to Fed.R.Civ.P. 72(b): "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."
II. Legal Standard
To qualify for social security benefits, Seltser must be "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). He'll be considered disabled if:
his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. § 1382c(a)(3)(B).
It is Seltser's burden to show that he is disabled and entitled to benefits. Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). If he can make that showing the burden ultimately shifts to the Commissioner to show that he is still able to work and that there is work available for him. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).
There is a five-step, sequential evaluation that an ALJ must follow in determining whether a claimant is eligible for disability benefits. First, he must not be engaged in a substantial gainful activity. If he is, benefits are denied. Second, his alleged impairments must be sufficiently severe that they limit his ability to work. If they're not, benefits are denied. Third, the impairment must meet or equal a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. If it does not, benefits are denied. Fourth, the claimant must lack the residual functioning capacity, or RFC, to perform his past work. If he does not, benefits are denied. Finally, the claimant's RFC, in view of his age, education, and past work experience, must be inadequate to allow him to adjust to other work in the national economy. See Sout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
The Court will only reverse the ALJ's denial of benefits if "it is based upon legal error or is not supported by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" and is "more than a mere scintilla but less than a preponderance." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citation omitted). Where the record supports more than one rational interpretation, the Court must defer to the ALJ's decision. Bayliss, 427 F.3d at 1214 n.1; Sandqathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
The R&R recommends that the Court uphold the ALJ's denial of benefits to Seltser. The Court will address Seltser's objections to the R&R in sequence.
A. Dr. Green's Testimony
Seltser first complains that the ALJ didn't give enough credit to the opinion of his treating psychologist, Dr. Green, that he is mentally impaired. For example, he says that "[t]he ALJ, the Defendant, and the MJRR rely heavily on the somewhat unusual nature of plaintiff's ongoing professional relationship with Dr. Green and the fact that Dr. Green has referred to himself on some occasions in the past as a vocational psychologist' as a basis to disregard all together, or give little weight' to Dr. Green's opinions." (Obj. at 5.) Seltser argues that Dr. Green is a licensed psychologist, and that he ...