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Whaley v. Astrue

December 10, 2008

KAY J. WHALEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Kay J. Whaley ("Whaley") filed a complaint on August 24, 2007. Pursuant to 28 U.S.C. § 636(c), the parties filed Consents to proceed before Magistrate Judge Rosenberg on October 1, 2007 and February 27, 2008. The parties filed a Joint Stipulation ("JS") on August 29, 2008, that addresses the disputed issues in the case. The Commissioner filed the certified administrative record ("A.R."). The Court has taken the Joint Stipulation under submission without oral argument.

Having reviewed the entire file, the Court concludes that the decision of the Commissioner is affirmed.

I. PROCEDURAL BACKGROUND

On June 7, 2005, Whaley filed an application for Disability Insurance Benefits.

A.R. 15. The application was denied initially and upon reconsideration. A.R. 34-35. Whaley requested a hearing. A.R. 48. The Administrative Law Judge ("ALJ") conducted a hearing on October 25, 2006, at which Whaley and a vocational expert testified. A.R. 231-264. On November 9, 2006, the ALJ issued an order denying benefits. A.R. 12-24. Whaley filed a request for review. A.R. 9. On June 21, 2007, the Appeals Council denied the request for review. A.R. 4-6.

II. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523.

III. DISCUSSION

A. Disability

A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S.Ct. 376, 157 L.Ed. 2d 333 (2003).

B. ALJ's Findings

Whaley has "severe impairments of the left ankle and has other conditions." A.R. 23. Whaley alleged bilateral ankle impairments, left shoulder and arm impairments, migraine headaches, irritable bowel syndrome, sleep problems and attention deficit disorder. A.R. 15. The ALJ found that the left ankle impairment was severe but, alternatively, also found that his conclusion that Whaley was not disabled would remain valid even if he considered the other impairments to be severe. A.R. 16.

Whaley has the residual functional capacity for "light work that does not require more than occasional climbing of ramps or stairs, crouching or crawling, requires no climbing of ladders, ropes or scaffolds, and she should avoid concentrated exposure to hazards, such as dangerous machinery and unprotected heights." A.R. 23-24. The ALJ found that Whaley "can stand and/or walk 6 of 8 hours and lift/carry 20/10 pounds." A.R. 19; see A.R. 16. Alternatively, Whaley was not disabled even if she were limited to standing and/or walking 2 of 8 hours, could lift/carry 10 pounds, and could use her right dominant hand only occasionally. A.R. 19-20.

The ALJ found that Whaley could perform her past work as a loan officer and administrative assistant. A.R. 24. Alternatively, assuming "an additional limitation to only occasional use of her right hand," Whaley would not be able to perform her past relevant work but is capable of ...


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