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Nisbet v. Astrue

September 29, 2010

BENJAMIN A. NISBET, PETITIONER,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, RESPONDENT.



The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER

Now pending before the Court is Benjamin Nisbet's Petition for Review (Docket No. 2), seeking review of the Social Security Administration's final decision to deny his claim for child's insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act. This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

I. PRELIMINARY MATTERS

This matter is before the Court upon a Petition for Review of the Commissioner of Social Security's final decision on Petitioner's request for benefits. Respondent challenges the procedural method by which Petitioner's counsel submitted the issues to be decided by the Court. Specifically, Respondent argues that Petitioner should not be allowed to rely on both a memorandum in support his Motion for Summary Judgment and a statement of facts.

Respondent's Mem., p. 5 (Docket No. 15). For purposes of this decision, the Court has considered Petitioner's nineteen-page supporting memorandum as an opening brief and notes that Respondent was not required in this administrative review case to file a statement of disputed facts. The record in this case speaks for itself and the Court has considered that entire record in light of the standards for judicial review in social security benefits cases.

Additionally, the Court notes that Petitioner filed for disability benefits shortly before his eighteenth birthday; thus, he has both a childhood and an adult disability claim. Petitioner submitted only four paragraphs of discussion about his childhood disability claim, noted that the standards for childhood disability benefits are more stringent than those for adult benefits, and requested that Petitioner's request be considered under the adult standards. Pet.'s Mem. on Mot. Summ. Judgment, p. 18 (Docket No. 12-2). Because the Court has decided to remand this case for the reasons set forth below, the ALJ will be required to consider how the medical evidence to be considered impacts both Petitioner's claim for childhood benefits and his claim for adult benefits.

II. ADMINISTRATIVE PROCEEDINGS

Petitioner first applied for Social Security disability benefits on March 6, 2006, when he was 17 years old. Petitioner turned 18 on September 27, 2006. AR 14. Petitioner's application for benefits is based on alleged mental disability. IQ testing measured normal intelligence, but during high school Petitioner was eligible for special learning services as a learning disabled student. See AR 182-89; 244-410. Petitioner, his mother, psychologists, and school personnel report depression, along with grief following the death of Petitioner's father.

Petitioner's disability benefits application was denied initially and, again, on reconsideration. AR 9. Petitioner made a timely request for a hearing before an Administrative Law Judge ("ALJ"). Id. On November 18, 2008, ALJ R. S. Chester held a hearing in Clarkston, Washington, at which time Petitioner, represented by attorney Paul L. Clark, appeared and testified. Id. See also AR 40-50. Also testifying at the hearing were Petitioner's mother, Marion Norton, vocational expert Tom Moreland, and Jay M. Toews, an impartial medical expert in psychology. AR 9, 30-39, 51-64.

On March 16, 2009, the ALJ determined that Petitioner's developmental disorder and depression/grief reaction pose more than minimal limitations on his ability to perform work-related activities. AR 22. The ALJ, however, issued a decision denying Petitioner's claims, finding that Petitioner was not disabled within the meaning of the Social Security Act. AR 26. Petitioner timely requested review from the Appeals Council. The Council denied Petitioner's request for review, making the ALJ's decision the final decision of the Commissioner of Social Security.

Having exhausted his administrative remedies, Petitioner timely filed the instant action, arguing that the Commissioner's decision is not supported by substantial evidence and is in conflict with rules, regulations, and the law. Pet.'s Mem. on Mot. Summ. Judgment, p. 2 (Docket No. 12-2). Specifically, Petitioner asserts that (1) the ALJ's residual functional capacity finding is not consistent with the limitations assessed by an examining psychologist; (2) the ALJ did not express specific and legitimate reasons, supported by substantial evidence, for disregarding two examining psychologists' opinions; (3) the ALJ failed to properly evaluate Petitioner's credibility; (4) the ALJ failed to properly evaluate lay evidence; and (5) the ALJ offered an incomplete hypothetical question to the vocational expert. Id. Petitioner requests that the Court reverse the ALJ's decision and order the payment of benefits or, alternatively, remand the case for proper consideration of the evidence.

III. STANDARD OF REVIEW

To be upheld, the Commissioner's decision must be supported by substantial evidence and based on proper legal standards. 42 U.S.C. § 405(g); Matney ex. rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ's factual decisions, they must be upheld, even when there is conflicting evidence. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).

"Substantial evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flatten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).

With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ. See ...


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