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Dirksen v. Astrue

February 18, 2009

PATTI DIRKSEN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

Plaintiff and Defendant have filed cross-motions for summary judgment. For the reasons set forth below, Plaintiff's motion is GRANTED and Defendant's motion is DENIED.

I. PROCEDURAL BACKGROUND

On January 31, 2005, Plaintiff filed an application for a period of disability and disability benefits under Title II of the Social Security Act. Plaintiff alleged that she became disabled on April 30, 2004, due to bilateral shoulder fractures, bilateral knee arthritis, gout, pain, depression, and anxiety. Plaintiff's claim was denied initially on March 14, 2005, and upon reconsideration on May 12, 2005.

On November 28, 2006, Plaintiff's claim was heard by Administrative Law Judge Peter J. Valentino (the "ALJ"). On December 11, 2006, the ALJ issued a decision denying benefits. Plaintiff filed a request for review with the Appeals Council, which was granted. In an order dated June 18, 2007, the Appeals Council remanded the case for further consideration and evaluation of certain medical opinions and other evidence.

Upon remand, the ALJ held a second hearing on September 18, 2007. Plaintiff appeared and testified. George Weilepp, M.D., a medical expert, and Mary Jesko, a vocational expert ("VE") also testified at the hearing.

In a decision dated November 30, 2007, the ALJ found that Plaintiff was not disabled. Plaintiff filed a request for review of the ALJ's decision, which was denied. The ALJ's decision then became the final decision of the Commissioner of Social Security. Plaintiff seeks judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g).

II. ALJ'S FINDINGS AND CONCLUSIONS

The ALJ found that Plaintiff has the following severe impairments: status post left shoulder fracture with residual pain and limited range of motion; status post right shoulder fracture without significant residuals; bilateral knee arthritis; depressive disorder NOS; generalized anxiety disorder versus anxiety disorder NOS; possible pain disorder; and substance abuse disorder. The ALJ also found that Plaintiff's impairment or combination of impairments do not meet or equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

The ALJ determined that Plaintiff has the residual functional capacity to do sedentary exertional work with no work at or above shoulder level, no work operating industrial vehicles, no work at unprotected heights or around dangerous machinery, and unskilled work with limited public contact due to her mental condition. Based on the VE's testimony, the ALJ concluded that although Plaintiff could not perform her past relevant work, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform -- specifically, bench hand assembler ("Bench Hand"- DOT 715.684-026), stuffer filler ("Stuffer" - DOT 731.685-014), and final assembler ("Final Assembler" - DOT 713.687-018).*fn1

III. STANDARD

The Commissioner's denial of benefits may be set aside if it is based on legal error or is not supported by substantial evidence. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). Substantial evidence is more than a scintilla but less than a preponderance. Id. Substantial evidence is "relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Flatten v. Secretary of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).

IV. DISCUSSION

Plaintiff argues that the ALJ's decision must be vacated because the ALJ failed to ask the VE whether her testimony conflicted with the Dictionary of Occupation Titles ("DOT") and, if so, whether there was a ...


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