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Seling v. Colvin

United States District Court, Ninth Circuit

December 20, 2013

TERESA L. SELING, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION RE: SOCIAL SECURITY DISABILITY APPEAL

MARY ALICE THEILER, Magistrate Judge.

Plaintiff Teresa L. Seling proceeds through counsel in her appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's application for Disability Insurance Benefits (DIB) 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 AFFIRMED.

FACTS AND PROCEDURAL HISTORY

Plaintiff was born on XXXX, 1963.[1] She completed college and previously worked as a library and book salesperson, real estate agent, and sales representative. (AR 182, 202, 224.)

Plaintiff filed an application for DIB on June 29, 2010, alleging disability since September 27, 2006. (AR 139-40.) Her application was denied initially and on reconsideration, and she timely requested a hearing. ALJ Kimberly Boyce held a hearing on February 15, 2012, taking testimony from plaintiff and a vocational expert. (AR 27-62.) At hearing, plaintiff amended her application, asking for a closed period of disability from September 27, 2006 through August 1, 2011. (AR 30-31.) On March 2, 2012, the ALJ rendered a decision finding plaintiff not disabled. (AR 10-20.)

Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on March 4, 2013 (AR 1-5), 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 that, while plaintiff worked after the alleged disability onset date, the work activity did not rise to the level of substantial gainful activity. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's lumbar spine disorder, with multiple disc protrusions and multilevel degenerative changes, severe. 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 plaintiff had the RFC to perform medium work as defined in 20 C.F.R. § 404.1567(c), except that she could stand and/or walk a total of six hours in an eight-hour workday, and could sit for a total of four hours in an eight-hour workday, with normal breaks. The ALJ further found plaintiff could frequently kneel, crouch, and crawl, could occasionally stoop, and should avoid concentrated exposure to hazards because of the effect of pain medication. With that RFC, and with the assistance of a vocational expert, the ALJ found plaintiff able to perform her past relevant work as a library and book salesperson, real estate agent, and sales representative.

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 janitor, cleaner/maid, and assembler. The ALJ, therefore, concluded plaintiff was not under a disability during the closed period of disability - from September 27, 2006 through August 1, 2011.

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 that the ALJ erred in assessing her credibility. She requests remand for payment of benefits or, in the alternative, for further proceedings. The Commissioner maintains the ALJ's decision has the support of substantial evidence and should be affirmed. ...


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