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Robert D. Sherman v. Michael J. Astrue

December 10, 2012


The opinion of the court was delivered by: Carolyn S. Ostby United States Magistrate Judge


Plaintiff Robert D. Sherman ("Sherman"), seeks judicial review of Defendant Commissioner of Social Security's ("Commissioner") decision denying his application for supplemental security income ("SSI") benefits under Title XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 1381-1383(c). After the parties consented in writing, this case was assigned to the undersigned for all proceedings. DKT 7. Now pending are the parties' cross-motions for summary judgment. DKTs 12 (Sherman's motion) and 15 (Commissioner's motion). For the reasons stated below, the Court denies Sherman's motion, grants the Commissioner's motion, and affirms the Commissioner's decision denying SSI for the period at issue.


On February 6, 2009, Sherman filed applications for disability insurance benefits ("DIB") and SSI benefits alleging disability beginning December 15, 1998. Tr. 32-33, 157-67. The Social Security Administration ("SSA") denied his application at issue here both initially and on reconsideration. Tr. 105, 107, 112-14, 120-21.

On July 8, 2010, an Administrative Law Judge ("ALJ") held a hearing. Tr. 28-103. On September 9, 2010, the ALJ issued a written decision. Tr. 11-23. The ALJ explained that, at the hearing, Sherman amended his alleged onset date from December 15, 1998, to February 16, 2009. Tr. 11, 36. Sherman's earnings records showed that he "acquired sufficient quarters of coverage to remain insured through December 31, 2000." Id. Because his amended alleged onset date of February 16, 2009, was subsequent to the date he was last insured for DIB, Sherman dismissed his DIB application. Tr. 13, 32-33.

The ALJ next evaluated Sherman's SSI claim. For the reasons stated in his written decision, the ALJ denied it. Tr. 13-23. On January 24, 2012, the Appeals Council denied Sherman's request for review. Tr. 1-5. The Appeals Council noted that it was doing so having "considered the fact that since the date of the [ALJ's] decision, [Sherman] w[as] found to be under a disability beginning August 1, 2011, based on the application(s) [Sherman] filed on December 22, 2010[.]" Tr. 2. The Appeals Council concluded that this subsequent finding that Sherman was disabled did "not warrant a change in the [ALJ's] decision." Id. When the Appeals Council denied Sherman's request for review, the ALJ's decision became final for purposes of judicial review. 20 C.F.R. § 416.1481 (2012). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g).


This Court's review is limited. The Court may set aside the Commissioner's decision only where the decision is not supported by substantial evidence or where the decision is based on legal error. Ryan v. Commr. of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); 42 U.S.C. § 405(g). "Substantial evidence is more than a mere scintilla, but less than a preponderance." Id. (citing Bayliss v. Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir. 2005) (internal quotation marks omitted)). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks and citation omitted).

The Court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusion, and cannot affirm the ALJ "by isolating a specific quantum of supporting evidence." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (internal quotation marks and citation omitted). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (internal citation omitted).


A claimant is disabled for purposes of the Act if: (1) the claimant has a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months, and (2) the impairment or impairments are of such severity that, considering the claimant's age, education, and work experience, the claimant is not only unable to perform previous work, but the claimant cannot "engage in any other kind of substantial gainful work which exists in the national economy." Schneider v. Commr. of Soc. Sec. Admin., 223 F.3d 968, 974 (9th Cir. 2000) (citing 42 U.S.C. § 1382c(a)(3)(A)-(B)).

In determining whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. § 404.1520(a)(4)(i)-(v).

1. The claimant must first show that he or she is not currently engaged in substantial gainful activity. Tackett, 180 F.3d at 1098.

2. If not so engaged, the claimant must next show that he or she has a severe impairment. Id.

3. The claimant is conclusively presumed disabled if his or her impairments meet or medically equal one contained in the Listing of Impairments described in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (hereafter "Listing of Impairments"). Id. If the claimant's impairments do not meet or medically equal one listed in the regulations, the analysis proceeds to the fourth step.

4. If the claimant is still able to perform his or her past relevant work, he or she is not disabled and the analysis ends here. Id. "If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at [this step] and the evaluation proceeds to the fifth and final step." Id. at 1098-99.

5. If the claimant is unable to perform his or her past relevant work due to a "severe impairment (or because [he or she does] not have any past relevant work)" the court will determine if the claimant is able to make an adjustment to perform other work, in light of his or her residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(g). If an adjustment to other work is possible then the claimant is not disabled. Tackett, 180 F.3d at 1099.

The claimant bears the burden of proof at steps one through four, but at the fifth step the Commissioner bears the burden of establishing that there is other work in significant numbers in the national economy that the claimant can perform. Id. The Commissioner can meet this burden via the testimony of a vocational expert or reference to the Medical-Vocational Guidelines at 20 C.F.R. Pt. 404, Subpt. P, App. 2. Id. If the Commissioner is unable to meet this burden then the claimant is disabled and entitled to benefits. Id.


The ALJ followed the five-step sequential evaluation process in considering Sherman's claim. First, the ALJ found that Sherman had not engaged in substantial gainful activity since his amended alleged onset date of February 16, 2009. Tr. 13.

Second, the ALJ found that Sherman has the following severe impairments: "degenerative disc and joint disease lumbar and thoracic spines; obesity; osteoarthritis bilateral hands; [and] anti-social personality disorder[.]" Tr. 14. He also found that Sherman's alleged depression "is either not medically determinable, due to the lack of a formal diagnosis, or is nonsevere." Id.

Third, the ALJ found that Sherman does not have an impairment or a combination of impairments that meets or medically equals any one of the impairments ...

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