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Nesbit v. Colvin

United States District Court, Ninth Circuit

December 6, 2013

ARLENE A.Z. NESBIT, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION RE: SOCIAL SECURITY DISABILITY APPEAL

MARY ALICE THEILER, Chief Magistrate Judge.

Plaintiff Arlene A.Z. Nesbit proceeds through counsel in her appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda, the Court recommends this matter be REMANDED for further proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiff was born on XXXX, 1972.[1] She completed high school and attended some community college and technical college classes. (AR 48-49.) Plaintiff previously worked as a receptionist, dispatcher, waitress, and human resources assistant. (AR 32, 49-52, 187.)

Plaintiff filed an application for DIB on January 28, 2010 and protectively filed an application for SSI on December 21, 2009, alleging in both applications disability since June 15, 2007. (AR 159-66.) Her applications were denied initially and on reconsideration, and she timely requested a hearing. ALJ Mattie Harvin-Woode held a hearing on October 19, 2011, taking testimony from plaintiff and a vocational expert. (AR 41-86.) On January 26, 2012, the ALJ rendered a decision finding plaintiff not disabled. (AR 21-34.)

Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on March 7, 2013 (AR 1-6), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.

JURISDICTION

The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

DISCUSSION

The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since the alleged onset date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found the following impairments severe: major depressive disorder, generalized anxiety disorder, borderline personality disorder, thoracic and lumbar degenerative disc disease, osteoarthritis status post bilateral knee arthroscopy, asthma, IBS, GERD, obesity, and chronic pain syndrome. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found plaintiff's impairments did not meet or equal the criteria of a listed impairment.

If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found the following RFC: she can lift and/or carry twenty pounds occasionally and ten pounds frequently, stand and/or walk two hours and sit at least six hours in an eight-hour day; she can perform all postural activities frequently, but climb only occasionally; she must avoid concentrated exposure to extreme cold temperatures, pulmonary irritants, and workplace hazards; she can perform simple and some complex tasks, as long as no more than occasional contact with the public and superficial contact with coworkers is required. With that RFC, and with the assistance of a vocational expert, the ALJ found plaintiff unable to perform her past relevant work.

If a claimant demonstrates an inability to perform past relevant work or has no 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 work that exists in significant levels in the national economy. With consideration of the Medical-Vocational Guidelines and the testimony of the vocational expert, the ALJ alternatively found jobs existed in significant numbers in the national economy plaintiff could perform, such as circuit board screener, table worker, and office clerk. The ALJ, therefore, concluded plaintiff was not under a disability at any time from the alleged onset date through the date of the decision.

This Court's review of the final decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the final decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

Plaintiff argues the ALJ failed to fully and fairly develop the record, failed to properly evaluate the medical evidence or her testimony, and improperly determined her RFC and the conclusion at step five. She requests remand for payment of benefits or, in the alternative, for further proceedings. The Commissioner ...


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