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Luu v. Astrue

August 10, 2009

JOHN LUU, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Judge Mcverry

MEMORANDUM OPINION AND ORDER OF COURT

I. Introduction

Plaintiff, John Luu, brought this action pursuant to 42 U.S.C. §§ 405(g), for judicial review of the final determination of the Commissioner of Social Security ("Commissioner") which denied his application for disability insurance benefits ("DIB") under title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-403.

II. Background

A. Facts

Plaintiff was born on June 27, 1952. Plaintiff's description of his educational experience is inconsistent. At one point, he indicates that the highest level of school which he completed is twelfth grade. T. 200. At another point, he indicates that he has completed two years of college. T. 174. Plaintiff has also completed heating and air conditioning school. T. 200. Plaintiff worked as a machine operator from 1979 to 2000. T. 53. He lost that job because the company moved to Mexico. T. 56. He later worked as a machinist for a week in August 2004 and claims that he quit because of his inability to do the job due to his impairments. T. 195. Plaintiff also worked as a cashier at the convenience store owned by himself and his wife from August 2002 to October 2004. T. 58 & 112. Plaintiff indicates at one point that he did not work full time as a cashier. T. 117. Plaintiff indicates at another point that he worked as a cashier full time. T. 57. Plaintiff has also watched his grandchildren. T. 116.

Plaintiff alleges disability as of September 18, 2000, due to low back pain, left leg pain, left shoulder pain, numbness in left foot, diabetes, a stroke, a heart attack, high blood pressure, high cholesterol, hepatitis C, and degenerative disc disease. Plaintiff's Brief in Support of Motion for Summary Judgment at 7. The Plaintiff worked as a cashier for his own business between 2002 and 2004. T. 57. The ALJ found that Plaintiff's work as a cashier qualified as substantial gainful employment and that Plaintiff engaged in this substantial gainful employment after alleging disability in September 18, 2000. T. 15.

B. Procedural History

Plaintiff initially filed an application for DIB on June 6, 2005, in which he claimed total disability since September 18, 2000. T. 12. An administrative hearing was held on July 17, 2007, before Administrative Law Judge Douglas Abruzzo ("ALJ"). T. 12 & 25. Plaintiff was represented by counsel and testified at the hearing. Judy Schollaert, an impartial vocational expert, also testified at the hearing. T. 12.

On August 28, 2007, the ALJ rendered a decision unfavorable to Plaintiff in which he found that Plaintiff retained the ability to perform past relevant work as a cashier as well as other light or sedentary jobs which exist in the region and, therefore, he was not "disabled" within the meaning of the Act. T. 24-25.

The ALJ's decision became the final decision of the Commissioner on November 25, 2008, when the Appeals Council denied Plaintiff's request to review the decision of the ALJ. T. 6.

On May 28, 2009, Plaintiff filed his Complaint in this Court in which he seeks judicial review of the decision of the ALJ. The parties have filed cross-motions for summary judgment. Plaintiff contends that the ALJ erred (1) in generally showing bias against claimants and their treating physicians; (2) in finding that Plaintiff could perform light work; and (3) in finding that Plaintiff's daily activities were inconsistent with his subjective complaints and therefore that Plaintiff's statements were not credible. The Commissioner contends that the decision of the ALJ should be affirmed as it is supported by substantial evidence. The Court agrees with the Commissioner and will therefore grant the motion for summary judgment filed by the Commissioner and deny the motion for summary judgment filed by Plaintiff.

III. Legal Analysis

A. Standard of Review

The Act limits judicial review of disability claims to the Commissioner's final decision. 42 U.S.C. §§ 405(g). If the Commissioner's finding is supported by substantial evidence, it is conclusive and must be affirmed by the Court. 42 U.S.C. § 405(g); Schaudeck v. Comm'n of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). The Supreme Court has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389 (1971); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). It consists of more than a scintilla of evidence, but less than a preponderance. Stunkard v. Secretary of Health & Human Servs., 841 F.2d 57, 59 (3d Cir. 1988).

When resolving the issue of whether an adult claimant is or is not disabled, the Commissioner utilizes a five-step sequential evaluation. 20 C.F.R. §§ 404.1520 and 416.920 (1995). This process requires the Commissioner to consider, in sequence, whether a claimant (1) is working, (2) has a severe impairment, (3) has an impairment that meets or equals the requirements of a listed impairment, (4) can return to his or her past relevant work, and (5) if not, whether he or she can perform other work. See 42 U.S.C . § 404.1520; Burnett v. Commissioner of Social Security, 220 F.3d 112, 118-19 (3d Cir. 2000) (quoting Plummer v. Apfel, 186, F.3d 422, 428 (3d Cir. 1999)).

To qualify for disability benefits under the Act, a claimant must demonstrate that there is some "medically determinable basis for an impairment that prevents him or her from engaging in any substantial gainful activity for a statutory twelve-month period."

Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); 42 U.S.C. ยง ...


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