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Hajjar v. Colvin

United States District Court, C.D. California, Western Division

January 12, 2015

GEORGE BOGHOS HAJJAR, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

MEMORANDUM OPINION AND ORDER

PAUL L. ABRAMS, Magistrate Judge.

I.

PROCEEDINGS

Plaintiff filed this action on March 10, 2014, seeking review of the Commissioner's denial of his application for Supplemental Security Income payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on March 12, 2014, and April 11, 1014. Pursuant to the Court's Order, the parties filed a Joint Stipulation on December 4, 2014, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

II.

BACKGROUND

Plaintiff was born on April 20, 1957. [Administrative Record ("AR") at 71, 210.] He has past relevant work experience as a retail salesperson - selling shoes and lingerie/women's accessories. [AR at 82, 210, 243.]

On August 24, 2006, plaintiff protectively filed an application for Supplemental Security Income payments. [AR at 77, 200.] In his application, plaintiff alleged disability beginning on August 24, 2006. [Id.] After his application was denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before an Administrative Law Judge ("ALJ"). [AR at 55.] A hearing was held on January 30, 2008. [AR at 21-39.] On February 29, 2008, the ALJ denied plaintiff's claim ("2008 Decision"). [AR at 12-20.] On September 26, 2008, the Appeals Council denied plaintiff's request for review and affirmed the ALJ's decision. [AR at 1-4.]

On November 14, 2008, plaintiff filed a federal action in case number CV 08-7468-PLA. On September 30, 2009, the Court reversed the Commissioner's 2008 Decision and remanded the case for further proceedings ("2009 Opinion") [AR at 271-89] to consider (1) whether plaintiff's speech impairment met Medical Listing 2.09; and (2) plaintiff's credibility concerning his limitations, "especially in light of Dr. Mesrobian's findings"[1] [AR at 289.]

On remand, a supplemental hearing was held on September 13, 2010, at which time plaintiff appeared represented by an attorney, and testified on his own behalf. [AR at 226-49.] A vocational expert ("VE") also testified. [AR at 243-48.] On January 6, 2011, the ALJ issued a partially favorable decision in which she again found that plaintiff was not disabled due to his speech impairment ("2011 Decision"). [AR at 200-14.] This time, however, she also found that plaintiff was disabled as of April 1, 2009, due to a mental impairment. [AR at 212-14.] On February 3, 2011, plaintiff filed a written notice of exceptions to the 2011 Decision. [Joint Stipulation ("JS") at 2.] When the Appeals Council affirmed the decision on January 28, 2014 [AR at 187-89], the ALJ's 2011 Decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). 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. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).

"Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclu sion." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (internal quotation marks and citation omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (same). When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citation omitted); see Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.") (internal quotation marks and citation omitted). "Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld." Ryan, 528 F.3d at 1198 (internal quotation marks and citation omitted); see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) ("If the evidence can support either affirming or reversing the ALJ's conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.") (citation omitted).

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 v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

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. §§ 404.1520, 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 his ability to do basic work activities; if not, a finding of nondisability 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 his past work; if so, the claimant is not disabled and the claim is denied. Id . 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 this burden, a prima ...


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