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MARLER v. CHATER

December 13, 1995

TERRY E. MARLER, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner Social Security, Defendant.



The opinion of the court was delivered by: HUFF

 Plaintiff Terry Eugene Marler appeals the decision of the Administrative Law Judge who denied his application for Social Security Income Benefits. Defendant, the Commissioner of Social Security, opposes plaintiff's request for summary judgment and urges affirmance of the decision below in her request for summary judgment.

 Having reviewed the papers submitted by the parties, the court denies the plaintiff's motion for summary judgment and affirms the Administrative Law Judge's denial of benefits to plaintiff.

 BACKGROUND

 The plaintiff, Terry Eugene Marler, is a forty nine year old man with a high school education and three years of college education. (Tr. 12, 43-44). Following his college years, Marler worked as a telemarketing representative, an insurance agent and a newspaper advertisement salesman. (Tr. 12, 44-45). After suffering a fall in which he broke his hip and underwent surgery, plaintiff has complained of headaches and severe pain in his right hip, right leg, back and neck, all of which inhibited Marler's ability to walk. (Tr. 12, 53-55, 95-99).

 On December 18, 1991, plaintiff filed for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act. (Tr. 63-66). 42 U.S.C. ยง 405(g). The commissioner denied plaintiff's original application for SSI; the reconsideration of that application fared no better and was also denied. (Tr. 68-71, 75-77). Plaintiff requested a hearing before an Administrative Law Judge (ALJ) and waived his right to appear at that hearing. (Tr. 78, 117). After considering the evidence the ALJ determined that plaintiff was not disabled. (Tr. 117-120). The Appeals Council reviewed the case pursuant to Marler's request, remanded the case, and ordered a new hearing. (Tr. 30-32).

 The ALJ held a hearing in which he evaluated the case de novo on July 12, 1994. (Tr. 35-62). Marler appeared at the hearing. Id. On October 24, 1994, after reviewing the evidence, which included an examinations by Dr. Tom Thomas, Dr. Ian MacMorran, and Dr. Scott Richards, the ALJ found that Marler was not disabled. (Tr. 12-17). Marler appealed the decision to the Appeals Council which adopted the decision of the ALJ. (Tr. 3-6). Marler filed a complaint in this court challenging the ALJ's decision to deny his SSI benefits.

 DISCUSSION

 Ninth Circuit case law limits the scope of this court's review to two bases: in reviewing the ALJ's decision, this court "may set aside the denial of benefits only [1] if it is not supported by substantial evidence or [2] if it is based on legal error." Flaten v. Sec'y of HHS, 44 F.3d 1453, 1457 (9th Cir. 1995). Under this framework of review, the term "substantial evidence" is defined as "relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Id.; see Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). More simply, if a review of the evidence supports the ALJ's decision without error it the application of the law, this court must accept it. Flaten, 44 F.3d at 1457; see Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971).

 A. THE EVIDENCE SUPPORTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS.

 The evidence presented to and considered by the ALJ supports the decision to deny Marler benefits. The ALJ reviewed evaluations of Marler by several doctors and determined that Marler's impairments, "do not meet or equal any of the criteria contained in the Listing of Impairments of Appendix 1, Subpart P, Regulations No. 4." (Tr. 12). The reports filed by Doctors Thomas, MacMarron, and Richards were detailed and thorough in their evaluations.

 First, the ALJ noted the orthopedic examination of plaintiff by Dr. Tom Thomas. (Tr. 13, 95-99) Dr. Thomas evaluated Marler's condition and conducted a complete orthopedic exam. Id. Dr. Thomas concluded as follows:

 
Marler does not require an aid for ambulation. He can occasionally lift and/or carry up to 50 lbs., frequently lift and/or carry up to 25 lbs., stand and/or work about 6 ...

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