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Terrie Owen Kampster v. Michael J. Astrue

September 19, 2012

TERRIE OWEN KAMPSTER, PETITIONER,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, RESPONDENT.



The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Terrie Kampster ("Petitioner") seeks review of the Commissioner of the Social Security Administration's final decision denying Petitioner's application for social security disability benefits under Title II of the Social Security Act. (Dkt. 1.) The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record ("AR"), and for the reasons that follow, will affirm the decision of the Commissioner.

PROCEDURAL AND FACTUAL HISTORY

Petitioner filed an application for social security disability benefits on April 23, 2008, alleging that he had been disabled and unable to work since September 1, 2007, due to a lumbar spine impairment, severe back pain, and nerve damage. This application was denied initially. After reconsideration, Petitioner was found disabled during a portion of the time he was claiming disability -- beginning April 1, 2008, but not at any time prior to that date. (AR 104.) On February 12, 2009, Petitioner requested a hearing before an Administrative law Judge concerning the period from Petitioner's alleged onset date of September 1, 2007, to April 1, 2008.

A hearing was held on December 17, 2009, before Administrative Law Judge ("ALJ") Paul Hebda. In a decision dated January 15, 2010, the ALJ found Petitioner not disabled at any time, reversing the earlier finding of disability since April 1, 2008. (AR 13.) Petitioner timely requested review by the Appeals Council, which denied the request for review on April 20, 2011, making the ALJ's decision the final decision of the Commissioner. Petitioner timely filed an appeal of the Commissioner's final decision to this Court on June 17, 2011. (Dkt. 1.) The Court has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g).

At the December 17, 2009 hearing, Petitioner was represented by a non-attorney representative and testified on his own behalf. The ALJ also heard testimony from a vocational expert. Based upon the finding that Petitioner could perform past relevant work as a street sweeper operator (as that position is defined in the Dictionary of Occupational Titles) and the alternative finding that Petitioner could perform other jobs existing in significant numbers in the national economy, the ALJ issued a decision finding Petitioner not disabled on January 15, 2010. (AR 16.)

Petitioner was born in 1953, making him 54 years of age at the time of his alleged onset of disability date, and has a high school education. Petitioner reported prior work experience as a street sweeper operator and as a dump-truck driver.

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. At step one, it must be determined whether the claimant is engaged in substantially gainful activity. The ALJ found Petitioner had not engaged in substantial gainful activity after his alleged onset date. (AR 18.) At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found that Petitioner's disorder of the back post lumbar fusion was a severe impairment within the meaning of the Regulations. (AR 18.)

Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Petitioner's impairments did not meet or equal the criteria for the listed impairments, specifically considering Petitioner's back problems under Listing 1.04 dealing with disorders of the spine. (AR 21.) If a claimant's 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.

The ALJ determined that Petitioner had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), subject to the qualifications that Petitioner should avoid concentrated exposure to excessive vibration, only occasionally climb ladders, ropes, or scaffolds, and only occasionally stoop or kneel. (AR 21.)

At step four, the ALJ found Petitioner was able to perform his past relevant work as a street sweeper operator. (AR 23.) Although the determination that a claimant is capable of performing past relevant work is dispositive on the issue of disability, the ALJ made an alternative finding at step five in this case. (AR 24-25.) Ordinarily, 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 RFC, age, education and work experience. Here, based upon the vocational expert's testimony that Petitioner could perform work as an escort vehicle driver, chauffeur, and message courier, the ALJ found that jobs existed in significant numbers in the national economy which Petitioner could perform. Given these alternative findings, the ALJ found Petitioner not disabled within the meaning of the Social Security Act from August 1, 2007 -- Petitioner's alleged onset of disability date -- through the date of the ALJ's decision on January 15, 2010 .

STANDARD OF REVIEW

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 also 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 ...


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