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De Jesus v. Astrue

September 3, 2009


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


Plaintiff filed a Complaint on October 10, 2007, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for supplemental security income ("SSI"). On January 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 July 8, 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.


On June 9, 2003, plaintiff filed a prior application for SSI, which was denied initially, upon reconsideration, and by Administrative Law Judge F. Keith Varni ("ALJ Varni") in a written decision dated January 18, 2005. (Administrative Record ("A.R.") 57-64.) Plaintiff did not appeal ALJ Varni's decision.

On March 8, 2005, plaintiff filed another application for SSI, alleging an inability to work since May 1, 2003, due to depression. (A.R. 94-96, 99, 105.) Plaintiff has no past relevant work.*fn1 (A.R. 23, 105.)

The Commissioner denied plaintiff's application initially (A.R. 75-79) and on reconsideration (A.R. 68-73). On February 8, 2007, plaintiff, who was represented by counsel, testified at a hearing before Administrative Law Judge Thomas J. Gaye ("ALJ"). (A.R. 205-14.) On March 29, 2007, the ALJ denied plaintiff's claim in a written decision. (A.R. 17-24.)

Thereafter, the Appeals Council received from plaintiff a timely request for review of the ALJ's decision, along with additional evidence, i.e., a two-page work capacity evaluation form, dated March 14, 2007, from Imelda Alfonso, M.D., who plaintiff claimed was her treating psychiatrist. (A.R. 10, 203-04.) The Appeals Council made this additional evidence part of the record. (A.R. 9.) After consideration of this new evidence, the Appeals Council concluded that it did not provide any basis to overturn the ALJ's decision. (A.R. 4-6).


In his written decision, the ALJ found that plaintiff has not engaged in substantial gainful activity since May 1, 2003, the alleged disability onset date. (A.R. 19.) The ALJ further found that plaintiff's only "severe" impairment is an "affective disorder." (A.R. 20.)

The ALJ determined that plaintiff has the residual functional capacity to perform a full range of exertional work, but she is "moderately limited in her ability to carry out detailed instructions and mildly limited in concentration. [She] is literate in Spanish, but has limited English capability." (A.R. 20.)

Based on a review of the evidence, the ALJ determined that plaintiff "has not met her burden of proof in overcoming the continuing presumption of non-disability raised by the administrative law judge decision of January 18, 2005." (A.R. 22.)

Having considered plaintiff's age, education, work experience, and residual functional capacity, and in reliance on testimony from a vocational expert, the ALJ found that jobs exist in significant numbers in the national economy that plaintiff can perform, such as a hand packager, cleaner, and dining room attendant. (A.R. 23.)

Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since March 8, 2005, the date the application was filed. (A.R. 24.)


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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