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Jerry Eugene Pokriots v. Michael J. Astrue

June 25, 2012


The opinion of the court was delivered by: Honorable Mikel H. Williams United States Magistrate Judge



Currently pending before the Court for its consideration is PetitionerJerry Eugene Pokriots ("Petitioner") Petition for Review (Dkt. 1) of the Respondent's denial of social security benefits, filed December 14, 2009. The Court has reviewed the Petition for Review and the Answer, the parties' memorandums, and the administrative record ("AR"). For the reasons that follow, the Court will affirm the decision of the Commissioner.


Procedural and Factual History Petitioner filed an application for Disability Insurance Benefits on October 28, 2008, alleging disability beginning July 29, 2008, due to a disabling condition, primarily osteoarthritis. Petitioner's application was denied initially and on reconsideration, and a request for a hearing was timely filed.

Administrative Law Judge ("ALJ") James W. Sherry held a hearing on November 24, 2009, taking testimony from Petitioner and vocational expert Daniel R. McKinney, Sr. AR 61-67. At the time of the hearing, Petitioner was 54 years old. He has a twelfth grade educationand his past relevant work includes logger and construction worker. ALJ Sherry issued a decision finding Petitioner not disabled on December 14, 2009.*fn1 AR 9-19.

Petitioner filed a timely appeal to the Appeals Council which denied his request for review, making the ALJ's decision the final decision of the Commissioner. AR 1-3. Petitioner appealed this final decision to this Court. The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).


Sequential Process The Commissioner follows a five-step sequential evaluation for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proving disability within the meaning of the Social Security Act. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). More specifically, the claimant has the burden of proving disability in the first four steps of the sequential evaluation after which the burden moves to the Commissioner at the fifth step. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).

At step one, it must be determined whether the claimant is engaged in substantial gainful activity. The ALJ found Petitioner had not engaged in substantial gainful activity since his alleged onset date of July 29, 2008.

At step two, it must be determined whether claimant suffers from a severe impairment. The ALJ found that impairments to Petitioner's left shoulder, right elbow, left knee, and left hand were "severe" within the meaning of the Regulations due to left shoulder tendinosis with moderate to severe osteoarthritis; mild arthritic changes in his right elbow; left knee tear of medial meniscus and patellofemoral tracking abnormality, status post arthroscopic meniscectomy; and left hand mild degenerative changes.

At step three, it must be determined whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Petitioner did not have an impairment or combination of impairments that meets or equals the criteria for the listed impairments. If a claimant's impairments or combination of impairments do not meet or equal a listing, the Commissioner must assess the claimant's residual functional capacity ("RFC") and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. Here, at step four, the ALJ found Petitioner was unable to perform his past relevant work as a logger or construction worker both of which are classified as heavy work.

If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to other work that exists in significant levels in the national economy, after considering the claimant's residual functional capacity, age, education, and work experience. Here, the ALJ found that Petitioner had the residual functional capacity to perform light work and that there were jobs that existed in significant numbers in the national economy that he could perform such as small parts and products inspector, cashier, or packer and inspector. Accordingly, the ALJ determined that Petitioner was not disabled.


Standard of Review The Petitioner bears the burden of showing that disability benefits are proper because of the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); See 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th Cir. 1971). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he not only cannot do his previous work but is unable, considering his age, education, and work experience, to engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

On review, the Court is instructed to uphold the decision of the Social Security Commissioner if the decision is supported by substantial evidence and is not the product of legal error. 42 U.S.C. § 405(g); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999); DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a preponderance, Jamerson v. Chater, 112 ...

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