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Salazar v. Astrue

August 17, 2009

PATRICIA SALAZAR, 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 December 27, 2007, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for a period of disability ("POD"), disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On February 7, 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 21, 2008, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, in the alternative, remanding the matter for further administrative proceedings; 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 June 24, 2004, plaintiff filed applications for a POD, DIB, and SSI, alleging an inability to work since June 1, 2003, due to obesity and knee problems. (Administrative Record ("A.R.") 31, 53-55, 100-01, 342-44.) Plaintiff has past relevant work experience as a theater manager and sales attendant. (A.R. 87, 92.)

The Commissioner denied plaintiff's application initially (A.R. 31-35) and on reconsideration (A.R. 38-43). On February 21, 2006, plaintiff, who was represented by counsel, testified at a hearing before Administrative Law Judge Barry S. Brown ("ALJ"). (A.R. 354-71.) On July 10, 2006, the ALJ denied plaintiff's claims (A.R. 15-23), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 5-7).

SUMMARY OF ADMINISTRATIVE DECISION

In his written decision, the ALJ found that plaintiff has not engaged in substantial gainful activity since June 1, 2003, plaintiff's alleged disability onset date, and that plaintiff meets the insured status requirements of the Social Security Act through December 31, 2006. (A.R. 17.) The ALJ determined that plaintiff suffers from "severe" morbid obesity, osteoarthritis, headaches, and sleep apnea, but she does not have any impairment or combination of impairments that meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulations No. 4. (A.R. 17-18.) The ALJ also determined that plaintiff "has some depression, but the evidence does not show that it is of any severe degree." (A.R. 17.)

The ALJ stated that he considered plaintiff's obesity in conjunction with Social Security Ruling 02-01p and Listings 1.01, 3.01, and 4.01 relative to disorders of the musculoskeletal, respiratory, and cardiovascular systems. (A.R. 18, 20.) The ALJ found that plaintiff's statements concerning the intensity, persistence, and limiting effects of her subjective symptoms are "not entirely credible." (A.R. 18.)

In setting forth plaintiff's residual functional capacity ("RFC"), the ALJ relied upon the opinion of Joselyn Bailey, M.D., a non-examining, non-testifying medical expert, and found that:

[Plaintiff] has the residual functional capacity for light work with the ability to lift and carry 25 pounds occasionally and 10 pounds frequently, sit for two hours at a time, stand for one hour at a time, and walk for one hour at a time, for a total of eight hours of sitting, four hours of standing, and four hours of walking during an eight hour workday. [Plaintiff] is able to use her hands for simple repetitive grasping and for pushing and pulling of arm controls, and occasionally for fine manipulation. She can use her feet for repetitive pushing and pulling of leg controls. [Plaintiff] is unable to squat or crawl, but can occasionally climb stairs and frequently bend or reach. She is restricted from working at unprotected heights, being around large fast moving machinery and driving automotive equipment.

(A.R. 18.)

Based on his RFC assessment, the ALJ found that plaintiff is capable of performing her past relevant work as a theater manager or sales attendant. (A.R. 21.) In addition, the ALJ made the alternative finding that, even if plaintiff had a more restrictive RFC for no more than sedentary work, there are jobs that exist in significant numbers in the national economy that plaintiff can perform. (A.R. 21-22.) Accordingly, the ALJ concluded that plaintiff was not under a disability from June 1, 2003, through the date of the ALJ's decision. (A.R. 22.)

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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