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John v. Astrue

March 13, 2009


The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge


This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Pursuant to 28 U.S.C § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have filed their pleadings, the defendant has filed the certified transcript of record, and the parties have filed a Joint Stipulation. After reviewing the matter, the Court concludes that the Decision of the Commissioner should be affirmed.


Plaintiff filed an application for DIB and SSI in March of 2002, alleging that she became disabled on February 15, 2002, due to effects from a prior skull fracture, headaches, high blood pressure, and seizures. Plaintiff's application was denied initially and on reconsideration.

On September 19, 2002, plaintiff requested a hearing to review the denial of her application for DIB and SSI (Administrative Record ("AR") 92), and was afforded a hearing before an Administrative Law Judge ("ALJ") on November 26, 2003 (AR 99). A supplemental hearing was scheduled for June 2, 2004 (AR 113), but plaintiff failed to appear. The ALJ issued a Notice of Dismissal dated July 29, 2004 (AR 76-79). Since plaintiff showed good cause for her failure to appear at the supplemental hearing, the ALJ vacated the Order of Dismissal (AR 80).

Following another hearing before the ALJ on August 25, 2004, the ALJ issued an unfavorable Decision on September 30, 2004 (AR 11-22). The ALJ found plaintiff's allegations regarding her limitations were not totally credible and that plaintiff could perform a significant number of jobs in the national economy (AR 21). On October 29, 2004, plaintiff filed a Request for Review of the Hearing Decision (AR 9). The Appeals Council denied review of the decision (AR 5).

Plaintiff commenced a civil action that resulted in a Judgment (AR 267) and a Memorandum Decision and Order (AR 268-70). The Order of the United States Magistrate Judge directed that the ALJ further develop the record and obtain the complete treatment records from plaintiff's treating physician. Id. The Appeals Council remanded the case back to the ALJ for further proceedings consistent with the Order of this Court (AR 265-66).

On February 7, 2007, a remand hearing was held before another ALJ, in addition to a supplemental hearing on July 18, 2007. On October 3, 2007, the ALJ issued an unfavorable Decision (AR 245-57). The ALJ found that plaintiff's complaints regarding her seizures were not credible and that plaintiff's functional limitation did not preclude her from performing past relevant work (AR 256). This action followed.

Plaintiff makes six challenges to the ALJ's determination. Plaintiff alleges that the ALJ erred by failing: (1) to consider the State Agency psychiatrist's findings; (2) to properly develop the record regarding plaintiff's high school records; (3) to properly determine whether plaintiff's impairment meets or equals a "listed impairment;" (4) to properly consider the consultative examiner's opinion; (5) to properly determine whether plaintiff could perform her past work as a produce sorter; and (6) to pose a complete hypothetical question to the vocational expert. Each of plaintiff's contentions will be addressed in turn.


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 must be more than a mere scintilla, but not necessarily a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). This Court cannot disturb the Commissioner's findings if those findings are supported by substantial evidence, even though other evidence may exist which support's plaintiff's claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, Torske v. Weinberger, 417 U.S. 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971).

ISSUE NO. 1: The ALJ properly considered the State Agency psychiatrist's findings.

Plaintiff contends that the ALJ ignored the findings of Dr. H. N. Hurwitz, the State Agency psychiatrist, without comment and consideration. Plaintiff argues that the ALJ may not ignore the findings of State agency physicians and must consider such findings as opinion evidence. Plaintiff further contends that the ALJ must explain the weight given to such opinion evidence.

Defendant argues that the ALJ's failure to discuss Dr. Hurwitz's findings does not equate to a failure to consider the findings. Defendant contends that the ALJ properly analyzed the evidence in this case, as evidenced by the consistent findings between the ALJ and Dr. Hurwitz regarding plaintiff's residual functional capacity ("RFC").

Plaintiff is correct in asserting that the ALJ must explain in the decision the weight given to opinion evidence of State agency physicians. See 20 C.F.R. § 416.927(f)(2)(ii). However, the ALJ need not discuss every piece of evidence presented. See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Rather, the ALJ must explain why "significant probative evidence has been rejected." Id. (citation omitted). Thus, where the evidence was neither ...

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