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Shade v. Astrue

August 18, 2009

KATHY S. SHADE, PLAINTIFF,
v.
MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on February 24, 2009, seeking review of the Commissioner's denial of benefits. Plaintiff and Defendant consented to proceed before a United States Magistrate Judge. Plaintiff filed a motion for summary judgment on June 29, 2009 ("Pl.'s Mot."). Defendant filed a cross-motion for summary judgment on July 23, 2009 ("Def.'s Mot."). The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed February 27, 2009.

BACKGROUND

Plaintiff filed an application for supplemental security income on or about July 23, 2007, alleging disability beginning December 30, 2002 (Administrative Record ("A.R.") 7, 98, 118-19). Plaintiff asserts disability based on several alleged impairments, including "lack of oxygen/numbness of left side of body and very poor vision specially [sic] on the right eye, depression and mental condition" (A.R. 119; see also Pl.'s Mot., p. 2 (adding chronic headaches)). An ALJ examined the medical record and heard testimony from Plaintiff and from a vocational expert (A.R. 7-373).

The ALJ found Plaintiff suffers from severe impairments (i.e., "chronic headaches, neck pain and vision problems"), but retains the residual functional capacity to perform a limited range of medium work*fn1 (A.R. 9-11). Specifically, the ALJ found Plaintiff could:

. . . lift and carry 50 pounds occasionally and 25 pounds frequently. She can sit and stand for 6 hours out of an 8 hour day. She can occasionally walk on uneven terrain, climb ladders and work around heights. The claimant has visual problems restricting her near acuity.

(A.R. 11).

The ALJ stated Plaintiff has "past relevant work" as a home attendant, retail sales clerk, telemarketer, and security guard (A.R. 12). The ALJ found that Plaintiff retains the capacity to perform the telemarketing job "as it was actually and generally performed" (A.R. 12-13 (purportedly adopting vocational expert testimony at A.R. 56-58)).*fn2 The Appeals Council denied review (A.R. 1-3).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used proper legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

DISCUSSION

For the reasons discussed below, both parties' motions for summary judgment are denied and this matter is remanded for further administrative proceedings pursuant to ...


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