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Greene v. Astrue

December 30, 2008

CARLOS A. GREENE, JR., PLAINTIFF,
v.
MICHAEL J. ASTRUE,*FN1 COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff filed a Complaint on January 22, 2007, seeking review of the denial by the Social Security Commissioner ("Commissioner") of his application for supplemental security income ("SSI"). On February 13, 2007, the parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on October 10, 2007, in which: Plaintiff seeks an order reversing the Commissioner's decision denying benefits and directing the payment of benefits or, alternatively, remanding the case for a new hearing; and Defendant requests that the Commissioner's decision be affirmed. The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

Plaintiff's grandmother filed an application for SSI on behalf of Plaintiff on December 1, 1991, alleging disability due to asthma and borderline intellectual functioning. (Administrative Record ("A.R.") 151-56.) Plaintiff received childhood disability benefits until those benefits were terminated in August 2000. (A.R. 160.) The Commissioner denied reconsideration of the benefit termination on November 9, 2001. (A.R. 165-67.) On May 15, 2003, Administrative Law Judge Samuel W. Warner ("ALJ Warner") found that Plaintiff was not under a disability since his date of cessation. (A.R. 397.)

Plaintiff then filed a new application for SSI on September 24, 2003, again alleging disability due to asthma and borderline intellectual functioning. (A.R. 427-34.) He has no past relevant work experience. (A.R. 35.)

The Commissioner denied Plaintiff's claim for benefits initially and upon reconsideration. (A.R. 400-03, 27-36.) On January 3, and April 14, 2005, Plaintiff, who was represented by counsel, testified at hearings before Administrative Law Judge James Moser ("ALJ"). (A.R. 738-43, 744-69.) No medical expert testified. (Id.)

On July 21, 2005, the ALJ concluded that "the evidence does not establish that 'changed circumstances' exist since ALJ Warner's May 13 [sic], 2003 decision," and denied Plaintiff's request for SSI. (A.R. 27-36.) The Appeals Council subsequently denied Plaintiff's request for review of the ALJ's decision. (A.R. 9-11.)

SUMMARY OF ADMINISTRATIVE DECISION

In his July 21, 2005 written decision, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the alleged onset of his disability. (A.R. 35.) The ALJ further found that Plaintiff's asthma and borderline intellectual functioning are "severe" under the regulations.*fn2 (Id.) The ALJ also found that neither of Plaintiff's impairments, individually or in combination, is listed as or medically equivalent to a listed impairment. (Id.)

Assessing Plaintiff's residual functional capacity, the ALJ found that Plaintiff can: lift and carry 50 pounds occasionally and 25 pounds frequently; stand, walk, and sit for six hours in an eight hour day; perform unlimited pushing and pulling of hand and foot controls; perform simple repetitive tasks with no limitation on the ability to maintain concentration, persistence, or pace; relate to others and adapt to a work environment. (A.R. 35.) The ALJ found that Plaintiff has a moderately limited ability to understand, remember, and carry out detailed instructions, and he must avoid fumes, odors, dust, gases, and poor ventilation. (Id.) Based on this assessment, as well as Plaintiff's classification as a younger individual with a limited education and no vocationally relevant work experience, the ALJ found that jobs Plaintiff can perform exist in significant numbers in the national economy. (A.R. 36.) Accordingly, the ALJ concluded that Plaintiff was not disabled during the time period at issue. (Id.)

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the record can constitute substantial evidence, only those "'reasonably drawn from the record'" will suffice. Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" ...


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