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Pernell v. Astrue

August 21, 2009


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


Plaintiff filed a Complaint on December 17, 2007, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for supplemental security income ("SSI"). On January 11, 2008, the parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). On September 18, 2008, the parties filed a Joint Stipulation in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, in the alternative, remanding the matter for a new administrative hearing; and defendant requests that the Commissioner's decision be affirmed. The Court has taken the parties Joint Stipulation under submission without oral argument.


On September 28, 2004, plaintiff Vincent Imanuel Pernell's father, Marvin D. Pernell, on behalf of his minor son, protectively filed an application for SSI, alleging disability since May 1, 2004,*fn1 due to seizure disorder and asthma. (Administrative Record ("A.R.") 19, 98, 109.) The application was denied initially and upon reconsideration. (A.R. 62-63, 66-75.) On March 7, 2007, and June 8, 2007, plaintiff, who was represented by counsel and accompanied by his father, appeared at hearings before Administrative Law Judge Lowell Fortune ("ALJ"). (A.R. 369-96, 397-424.) On June 19, 2007, the ALJ denied plaintiff's claim (A.R. 16-27), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 6-9).


In his written decision, the ALJ found that, as of September 28, 2004, the date the application was filed, plaintiff was an older infant and, as of June 19, 2007, the date of the ALJ's decision, plaintiff was a pre-schooler. (A.R. 19.)

The ALJ determined that plaintiff has the following "severe" impairments: a seizure disorder; a disruptive disorder, not otherwise specified; and attention deficit hyperactivity disorder ("ADHD"). (A.R. 19.) The ALJ further determined that plaintiff does not have an impairment or combination of impairments that meets, medically equals, or functionally equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)

The ALJ found, in reliance on the opinion of the medical expert psychologist, Michael E. Kania, Ph.D., that the opinion of plaintiff's treating psychologist, Wolfgang Klebel, Ph.D., was "based solely upon what [plaintiff's] father told the doctor and not on any independent objective findings or psychological testing." (A.R. 22.) The ALJ further found that the statements of plaintiff's father concerning the "intensity, persistence and limiting effects of [plaintiff's] symptoms are not entirely credible." (A.R. 20.)

Based on the ALJ's assessment of the evidence and in reliance on the opinions of the two medical experts, Dr. Kania and Colin P. Hubbard, M.D., F.A.A.P., the ALJ concluded that plaintiff has not been disabled, as defined in the Social Security Act, since September 28, 2004, the date the application was filed. (A.R. 27.)


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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