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Lujan v. Astrue

March 17, 2009

RACHEL LUJAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

The Court*fn1 now rules as follows with respect to the three disputed issues listed in the Joint Stipulation ("JS").*fn2

I. DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues which Plaintiff raises as the grounds for reversal and/or remand are as follows:

1. Whether the ALJ properly developed the record;

2. Whether the ALJ properly considered Plaintiff's credibility; and

3. Whether the ALJ properly considered the type, dosage, effectiveness, and the side effects of Plaintiff's medications.

(JS at 2.)

II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

III. DISCUSSION

A. The ALJ Did Not Fail to Properly Develop the Record

Plaintiff contends that the ALJ should have informed Plaintiff, who was unrepresented at the hearing, that the ALJ could have subpoenaed certain missing medical records himself on Plaintiff's behalf. Plaintiff also contends the ALJ should have informed her that she could ask for an extension of time if she had difficulty obtaining the records. (JS at 4.)

At the hearing, Plaintiff appeared in pro per. She chose to go forward after waiving her right to representation. (AR at 12, 153-55.) At the end of an extensive admonishment about obtaining counsel, the ALJ asked Plaintiff if there was anything else she would like to ask him. Plaintiff responded, "No, I can just go ahead sir. I don't think I have anything I can - I asked to see my records, and I did call over to the main office and I never got a call back to see what you did or didn't have, because there is quite a long ...


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