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October 3, 2005.

MELANIE A. LAHR, Plaintiff,

The opinion of the court was delivered by: NAPOLEON JONES, District Judge

Before the Court are Magistrate Judge Brooks' report and recommendation ("R&R") stating that this Court should affirm the Administrative Law Judge's ("ALJ") April 16, 2003, determination that Plaintiff Melanie A. Lahr ("Plaintiff") is not eligible for disability benefits. On January 13, 2005, Plaintiff filed her Motion for Summary Judgment requesting reversal of the ALJ's decision. [Doc. No. 11.] On February 11, 2005, the Commissioner of Social Security ("Defendant") filed a Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion. [Doc. No. 13.] On February 28, 2005, Plaintiff filed a Reply to Defendant's Cross-Motion for Summary Judgment. [Doc. No. 15.] On June 23, 2005, the Magistrate Judge issued an R&R recommending that this Court deny Plaintiff's motion and grant Defendant's cross-motion. The Report required that objections be submitted to the Court by July 25, 2005. On July 25, 2005, this Court accepted Plaintiff's objections to the R&R as timely.


  Plaintiff alleges she is unable to work due to cerebral palsy and back pain and is therefore eligible for Social Security Income ("SSI"). (Admin. R. at 26-27.) Drs. Hanna and Moore examined and evaluated Plaintiff and Dr. Hartman evaluated Plaintiff based on her medical records. (Id. at 185-90, 191-99, 201-04.) While there were some discrepancies in Drs. Hanna and Moore's reports, both specifically concluded Plaintiff had no sitting restrictions.*fn1 (Id. at 189, 204.)

  Plaintiff asserts she underwent a neurological examination with Dr. James Grisolia. (Id. at 138.) Dr. Grisolia stated that in his opinion sedentary work would be difficult for Plaintiff and that "her reduced finer coordination would make it impossible for her to perform at a sustained business pace." (Id. at 211.)

  At the administrative hearing regarding Plaintiff's eligibility for disability benefits, a vocational expert, Dr. Robert Metcalf, testified that each of the doctors' reports, except for that of Dr. Grisolia, indicated Plaintiff would be able to complete sedentary work. (Id. at 43-48, 185-204.) Dr. Metcalf also stated that such sedentary work opportunities were available to plaintiff locally and nationally. (Id. at 43-49.) However, he concluded that "no work would be available [to Plaintiff]" if Dr. Grisolia's findings were accepted as true. (Id. at 48.)

  After weighing the evidence and Dr. Metcalf's testimony at the hearing, the ALJ found that Plaintiff was able to work in a sedentary capacity and that she was not "under a disability" as defined in the Social Security Act. (Id. at 14-20.) Therefore, the ALJ concluded that Plaintiff was not eligible for SSI. (Id. at 20.) Legal Standard

  The district court's duties in connection with a magistrate judge's R&R are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) (2005). When an objection is made, the Court must make a de novo determination as to those parts of the R&R to which the parties object. United States v. Radios, 447 U.S. 667, 676 (1980) (quoting 28 U.S.C. § 636(b)(1)).

  Sections 205(g) and 1631(c)(3) of the Social Security Act allow unsuccessful applicants to seek judicial review of the Commissioner's final agency decision. 42 U.S.C. §§ 405(g), 1383(c)(3) (2005). The reviewing Court may set aside a decision denying benefits "only if it is not supported by substantial evidence or if it is based on legal error." Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). According to the Ninth Circuit, substantial evidence is what a "`reasonable person might accept as adequate to support [the ALJ's] conclusion,'" considering the record as a whole. Thomas v. Barnard, 278 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). It means "`more than a scintilla but less than a preponderance'" of the evidence. Id. (quoting Jamerson, 112 F.3d at 1066). The court considers the record as a whole, including the evidence that supports and the evidence that detracts from the ALJ's decision. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citing Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990). Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's decision must be upheld. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).


  The R&R states the ALJ's decision is supported by substantial evidence, based on the application of correct legal standards, and should therefore be affirmed by this Court. Plaintiff objects to the R&R and argues (1) the ALJ failed to give specific and legitimate reasons for rejecting Dr. Grisolia's opinion, and (2) that the R&R's post hoc finding that Dr. Grisolia was not Mrs. Lahr's treating doctor was improper because the ALJ made no such finding. For the reasons set forth below, the Court ADOPTS the R&R in its entirety.

  I. The ALJ's Analysis was Sound

  A. There was Substantial Evidence in the Record to Support the ALJ's Decision

  Plaintiff contends the results of Dr. Moore's grip-strength tests differed from Dr. Hannah's results and were more consistent with Dr. Grisolia's opinion that Mrs. Lahr could not use her upper extremities on a sustained basis without pain and loss of grip strength. (Pls.' Objs. R&R at 2-3.) Therefore, Plaintiff argues that the ALJ lacked support when he ruled that the grip-strength findings of examining Drs. Hanna and Moore were consistent with an ability to perform sedentary work. (Id.) For the reasons stated below, this Court finds that even if there were discrepancies in Dr. Moore and Hanna's reports, the R&R correctly found the ALJ based his decision on substantial evidence.

  To qualify for disability benefits under the Social Security Act, an applicant must show that: (1) he or she suffers from a medically determinable impairment that can be expected to last for a continuous period of twelve months or more or result in death, and (2) the impairment renders the applicant incapable of performing the work that he or she previously performed or any other ...

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