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Rivas v. Astrue

March 13, 2009

GERARDO RIVAS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, 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 October 9, 2007, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's applications for a period of disability ("POD"), disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On January 14, 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 July 18, 2008, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits; and defendant seeks an order affirming the Commissioner's decision. The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

On May 9, 1997, plaintiff filed applications for a POD, DIB, and SSI, alleging an inability to work since December 1, 1996, due to mental problems. (Administrative Record ("A.R.") 15, 53, 627.) In June 1997, the Social Security Administration ("SSA") determined that plaintiff was disabled as of December 1, 1996, due to "Organic Mental Disorders (Chronic Brain Syndrome)." (A.R. 53.) Plaintiff has past relevant work experience as a sewing machine operator. (A.R. 19, 137, 722.)

After conducting continuing disability reviews in September 2003, and March 2004, the SSA determined plaintiff had medically improved, and his disability ceased as of September 10, 2003. (A.R. 54, 59-69, 627.) Plaintiff appealed this determination.

On March 31, 2005, and August 10, 2005, plaintiff, who was represented by counsel and assisted by a Spanish language interpreter, appeared and testified at continuing disability review hearings before Administrative Law Judge Zane A. Lang ("ALJ Lang"). (A.R. 27-50.) On November 2, 2005, ALJ Lang issued an unfavorable decision finding, inter alia, that plaintiff had medically improved and could return to his past relevant work. (A.R. 15-20.)

On August 28, 2006, pursuant to stipulation of the parties, this Court remanded this matter to the Commissioner to: consider plaintiff's diabetes impairment and limitations caused by diabetic retinopathy and/or neuropathy; determine whether plaintiff has medically improved since the prior comparison-point decision; and if plaintiff has medically improved, determine whether the medical improvement is related to plaintiff's ability to work. (Joint Stipulation ("Joint Stip.") at 3.)

On May 2, 2007, plaintiff, who again was represented by counsel and assisted by a Spanish language interpreter, appeared and testified at a continuing disability review hearing before Administrative Law Judge Gail Reich ("ALJ"). (A.R. 709-761.) On June 29, 2007, the ALJ denied plaintiff's claims; that decision is now at issue. (A.R. 626-31.)

SUMMARY OF ADMINISTRATIVE DECISION

The ALJ found that plaintiff has not engaged in substantial gainful activity since December 1, 1996. (A.R. 630.) As of September 10, 2003, the cessation of plaintiff's benefits, the ALJ determined that plaintiff had the following "severe" impairments: borderline IQ; partial tear rotator cuff with shoulder pain; degenerative joint disease; and diabetes with blurred vision. (Id.) The ALJ further found that plaintiff "proved to be an unreliable witness." (A.R. 628.) The ALJ determined that, based on the medical record and the testimony of the medical and vocational experts, plaintiff could perform his past relevant work as a sewing machine operator. (A.R. 630.) Accordingly, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act during the time period at issue. (A.R. 630-31.)

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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