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July 26, 2004.

PETER M. COOPER, Plaintiff,
JO ANNE B. BARNHART, Commissioner, Social Security Administration, Defendant.

The opinion of the court was delivered by: MARTIN JENKINS, District Judge



Before the Court are cross-motions for summary judgment in a Social Security appeal brought by Plaintiff Peter M. Cooper and Defendant Jo Anne B. Barnhart, Commissioner of the Social Security Administration. These motions require the Court to determine if (1) substantial evidence exists in support of the Administrative Law Judge's decision, and (2) correct legal standards were applied. For the reasons set forth below, the Court SHOULD GRANT Defendant's motion and DENY Plaintiff's motion.


  On March 17, 2000, Plaintiff filed an application for Disability Insurance Benefits under Title II of the Social Security Act. The Social Security Administration ("SSA") denied the initial application on May 30, 2000 and upon reconsideration on July 3, 2000. Plaintiff appeared, pro se, before an Administrative Law Judge ("ALJ") on March 15, 2000. After the hearing, the ALJ denied Plaintiff's application concluding that Plaintiff was not disabled. The ALJ's decision became final when the Appeals Council declined Plaintiff's request for review on May 17, 2002. Plaintiff then filed this action for judicial review pursuant to 42 U.S.C. § 405(g). Plaintiff contends that (1) the ALJ's findings and conclusions are not supported by substantial evidence, and (2) incorrect legal standards were applied in the determination of the ultimate issues against Plaintiff.


  Plaintiff was 56 years old at the time of the hearing on March 15, 2001. (Transcript ("TR"), 38). He was educated in England, but left school at the age of fifteen to learn a trade as a machinist. (Tr. 51). Plaintiff currently resides in San Francisco. (Tr. 59). From January 1992 through November 27, 1999, he was employed as owner and manager of a bar. (Tr. 95). On August 1, 1995, Plaintiff was involved in an automobile accident. He continued to work until November 27, 1999, the day plaintiff sold the bar. Plaintiff filed for disability insurance benefits on March 17, 2000, alleging inability to work since November 27, 1999 due to brain injury and seizures resulting from the 1995 accident. Medical treatment records from Kaiser Permanente indicated that Plaintiff had a post-traumatic seizure disorder that was being treated with Dilantin.*fn1 (Tr. 136).

  On November 5, 1999, Kenneth Ip, M.D. performed an operation on Plaintiff's left eye to remove a cataract. There were no complications (Tr. 127), and no further difficulties with the eye are indicated in the records.

  Tania Shertock, Ph.D., performed a psychological evaluation of Plaintiff in April 2000. She concluded that Plaintiff had no limitations that would have precluded him from performing his past work. Dr. Shertock noted that Plaintiff was able to relate well in the interview and would be able to appropriately interact with supervisors and co-workers in a job setting. (Tr. 143).

  Edward Gallagher, M.D., a non-examining State agency physician, reviewed the records and concluded that Plaintiff had no physical limitations (Tr. 149-156) except for a need to avoid exposure to hazards such as machinery and heights. (Tr. 153).

  Robert E. Lee, M.D., a non-examining State agency psychiatrist, reviewed the record and concluded that Plaintiff had no severe mental impairment. (Tr. 144).

  At the administrative hearing, Plaintiff testified that since the automobile accident several years ago he has had seizures once every six months, lasting about five minutes and characterized by shaking and passing out. (Tr. 16). Plaintiff stated that he is deaf in the left ear and that he has problems using his left elbow for lifting. (Tr. 16).

  Plaintiff complained of having recurrent problems with dizziness. He alleges suffering on a daily basis due to issues with his equilibrium, stumbling and the inability to walk a straight line. (Tr.16). Yet, he admitted to having no difficulty sitting, walking "a lot," swimming, going to the theater, working out, and lifting between 20 and 50 pounds. (Tr. 18). The Vocational Expert indicated that the above-mentioned activities would be tantamount to work at a "medium exertional level." (Tr. 21). He further testified that Plaintiff's employment as either a bartender or manager was "light exertional work." Therefore, the ALJ reasoned that any claimant who has the ability to ...

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