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Dominic Green v. Michael J. Astrue

September 24, 2012

DOMINIC GREEN, 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

Dominic Green ("Petitioner") seeks review of the Commissioner of the Social Security Administration's final decision denying Petitioner's application for supplemental security income disability benefits under Title XVI 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 supplemental security income on January 18, 2006, alleging that he had been disabled and unable to work since October 2, 2000, due to a vascular lesion in his brain stem, fatigue, nausea, back problems, and depression. His application was denied initially and on reconsideration, and a hearing was held on November 6, 2008, before Administrative Law Judge ("ALJ") Lloyd E. Hartford. The ALJ issued a decision finding Petitioner not disabled on February 27, 2009, and Petitioner timely requested review by the Appeals Council.

The Appeals Council denied Petitioner's request for review on June 6, 2011, and the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 416.1481 and 422.210; See also, Batson v. Comm'r of Social Sec. Admin., 359 F.3d 1190, 1193 fn. 1 (9th Cir. 2004) ("Where, as here, the Appeals Council denies a request for review of an ALJ's decision, the decision of the ALJ represents the final decision of the Commissioner."). Petitioner timely filed an appeal of the Commissioner's final decision to this Court on July 22, 2011. (Dkt. 1.) The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

At the November 6, 2008 hearing, Petitioner was represented by counsel and testified on his own behalf. The ALJ also heard testimony from a medical expert, a vocational expert, and Petitioner's sister. At the time of the hearing, the most recent medical report was from November of 2006. Because of the gap in the medical evidence between 2006 and the 2008 hearing, the ALJ requested an additional consultative psychological examination, which was completed and admitted into evidence by the ALJ after the hearing concluded. Based upon the findings that Petitioner could perform a limited range of light work and that jobs existed in significant numbers in the national economy which Petitioner was capable of performing, the ALJ issued a decision finding Petitioner not disabled on February 27, 2009. (AR 22.)

Petitioner was born in 1966, making him 34 years of age at the time of his alleged onset of disability date and 39 years of age at the time his application was filed. Petitioner dropped out of high school in the 11th grade and reported prior work experience as an operating engineer, septic tank installer, and construction worker.

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 13.) At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found that Petitioner suffered from the following severe impairments within the meaning of the Regulations: major depression, history of small capillary telangiectasia of the medulla, and history of compression fractures. (AR 13.)

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 1.00 (Musculoskeletal System), his history of capillary telangiectasia under Listing 11.00 (Neurological), and his depression under Listing 12.04 (Affective disorders). (AR 14.) 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. § 416.967(b), subject to several limitations. Specifically, the ALJ found that Petitioner's RFC was subject to the following limitations:

The claimant is moderately limited in his abilities to understand, remember and carry out both detailed and complex instructions; to make judgments on complex work-related decisions; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to work in coordination with or proximity to others without being distracted by them; to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; to interact appropriately with the general public; to get along with co-workers or peers without distracting them or exhibiting behavioral extremes. His abilities to respond appropriately to changes in the work setting are not significantly limited. (AR 15.)

At step four, the ALJ found Petitioner was not able to perform his past relevant work. (AR 20.) 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. The ALJ found that Petitioner could perform work existing in significant numbers in the national economy, specifically noting positions identified by the vocational expert, which included road roller operator and road oiling truck driver. (AR 21.) Because the ALJ found that Petitioner could perform work existing in significant numbers in the national economy, he concluded that Petitioner was not disabled within the meaning of the Social Security Act. (AR 22.)

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 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 Commissioner if the decision is supported by substantial evidence and is not the product of legal error. 42 U.S.C. § 405(g); Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474 (1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); 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 F.3d 1064, 1066 (9th Cir. 1997), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).

The Court cannot disturb the Commissioner's findings if they are supported by substantial evidence, even though other evidence may exist that supports the petitioner's claims. 42 U.S.C. ยง 405(g); Flatten v. Sec'y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by substantial evidence, will be conclusive. Flatten, 44 F.3d at 1457. It is well-settled that, when the evidence can reasonably support either affirming or reversing the Commissioner's decision, the Court "may not substitute [its] judgment for that of the Commissioner." Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). The Ninth Circuit has instructed the district courts that the "key question is not whether there is substantial evidence that could support a finding of disability, but whether there is substantial evidence to support the Commissioner's actual finding that [the] claimant is not disabled." ...


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