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Perez v. Astrue

June 5, 2009


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

Plaintiff filed a Complaint on March 18, 2008, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for supplemental security income ("SSI"). On April 17, 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 October 23, 2008, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, in the alternative, remanding the matter for further 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 June 28, 2005, plaintiff filed an application for SSI, alleging an inability to work since April 1, 2004, due to avascular necrosis of the right hip and depression.*fn1 (Administrative Record ("A.R.") 22, 89-94, 96.) Plaintiff, who has a high school education obtained in El Salvador, has work experience as a dishwasher, cook, field worker, janitor, and laborer. (A.R. 21, 52, 61-62, 97, 114, 125.)

On November 2, 2005, after his application was denied initially, plaintiff requested a hearing on his claim. (A.R. 74, 81-85.) On June 26, 2006, plaintiff, who was represented by counsel and aided by a Spanish language interpreter, testified at a hearing before Administrative Law Judge Jan Dansbach ("ALJ Dansbach"). (A.R. 39-56.) ALJ Dansbach retired before issuing a decision on plaintiff's case. (A.R. 61.) Accordingly, on December 20, 2006, plaintiff, who again was represented by counsel and aided by a Spanish language interpreter, testified at a supplemental hearing before Administrative Law Judge Robert A. Evans ("ALJ"). (A.R. 57-72.) On January 18, 2007, the ALJ denied plaintiff's claim, and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision. (A.R. 4-8, 21-26.)

In his written decision, the ALJ found that plaintiff, who was 43 years old at the time of the hearing, has not engaged in substantial gainful activity since June 28, 2005. (A.R. 25.) The ALJ determined that plaintiff suffers from "degenerative joint disease of the left hip and depression, NOS," but "does not have a severe mental impairment." (Id.) The ALJ further found that plaintiff has the residual functional capacity to: "perform medium exertion with occasional climbing, balancing, kneeling, stooping, crouching, crawling, working at heights, or operating machinery. He also has mild restriction of activities of daily living, mild difficulties in maintaining social functioning, mild difficulties in maintaining concentration, persistence or pace with no episodes of decompensation, each of extended duration." (Id.)

Based on the ALJ's residual functional capacity assessment and the testimony of a vocational expert, the ALJ found that plaintiff was not able to perform his past relevant work, but could perform jobs, such as a hand-packager, that exist in significant numbers in the national economy. (A.R. 25.) Accordingly, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act during the time period in issue. (A.R. 26.)


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.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff raises a single issue: whether the ALJ properly considered plaintiff's treating physician's opinion. (Joint Stipulation ("Joint Stip.") at 4.)

I. The ALJ Failed To Provide A Legitimate Reason For Disregarding The Opinion Of Plaintiff's Treating Physician

A treating physician's conclusions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Generally, a treating physician's opinion is given greater weight, because "'he is employed to cure and has a greater opportunity to know and observe the patient as an individual.'" Magallanes v. Brown, 881 F.2d 747, 751 (9th Cir. 1989)(citation omitted). If a treating physician's opinion is "well-supported by medically-acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [the Commissioner] will give it controlling weight." 20 C.F.R. ยง 416.927(d)(2). Even where the treating physician's opinions are contradicted, "if the ALJ wishes to disregard the opinion[s] of the treating physician he . . . must make findings setting forth specific, legitimate reasons for doing so that are based on substantial ...

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