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Miller v. Astrue

February 12, 2009


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


Plaintiff filed a Complaint on October 31, 2007, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for supplemental security income ("SSI"). On January 7, 2008, 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 August 6, 2008, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, in the alternative, remanding the matter for further administrative proceedings; and defendant seeks an order affirming the Commissioner's decision. The Court has taken the parties' Joint Stipulation under submission without oral argument.


On May 19, 2005, plaintiff protectively filed an application for SSI. (Administrative Record ("A.R.") 356, 734.) Plaintiff alleges an onset disability date of May 19, 1995, due to asthma-emphysema, chronic back pain, mild hypertension, left shoulder pain, right hand old fracture, history of hepatitis C, history of coronary heart disease, and a depressive disorder.*fn1 (Joint Stipulation ("J.S.") at 2; A.R. 502.) Plaintiff has no past relevant work experience. (A.R. 362.)

Plaintiff's claims were denied initially and upon reconsideration, and on June 15, 2007, plaintiff, who was represented by counsel, testified at a hearing before Administrative Law Judge Gail Reich ("ALJ"). (A.R. 730-73.) On July 16, 2007, the ALJ issued an unfavorable decision. (A.R. 356-64.) The Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision. (A.R. 348-50.)

In her written decision, the ALJ found that plaintiff has the following severe impairments: asthma-emphysema; chronic back pain; mild hypertension; left shoulder pain; right hand old fracture; history of hepatitis C; history of coronary heart disease; and a depressive disorder. (A.R. 358.) The ALJ further found that plaintiff has the residual functional capacity to:

perform light work with standing and walking six hours, no power gripping, frequent overhead reaching with the left upper extremity, posturals are limited to frequent, right hand limited to frequent for fine and gross manipulation and avoid exposure too [sic] moderate concentration of irritants. Further, [plaintiff] is limited to a low stress environment with minimal interaction with others, no contact with the general public and simple repetitive tasks.

(A.R. 359.)

Based upon plaintiff's age, education, work experience, residual functional capacity, and the testimony of the vocational expert, the ALJ found that plaintiff is capable of performing work as a photo copy machine operator, collator, and assembler. (A.R. 363, 772.) Accordingly, the ALJ concluded that plaintiff has not been under a disability since May 19, 2005. (A.R. 363.)


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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