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Flores v. Astrue

September 17, 2009

ANDREW FLORES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Andrew Flores filed this action on October 27, 2008. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on November 13 and November 25, 2008. (Dkt. Nos. 8, 9.) On May 28, 2009, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The Court has taken the matter under submission without oral argument.

Having reviewed the entire file, the Court affirms the Commissioner's decision.

1. PROCEDURAL BACKGROUND

On October 22, 2004, Flores filed an application for Supplemental Security Income benefits. AR 30. The application was denied initially and upon reconsideration. Id. An Administrative Law Judge ("ALJ") conducted a hearing on April 6, 2007, at which Flores, a medical expert ("ME"), a vocational expert ("VE") and Flores' brother, Rudolph Flores, testified. AR 81-100. On April 26, 2007, the ALJ issued an unfavorable decision. AR 10-20. Flores requested review of the decision on August 27, 2007. AR 7. The Appeals Council remanded for further proceedings on October 26, 2007. AR 41-45. On remand, a supplemental hearing was held on February 5, 2008 before a different ALJ, at which Flores and a VE testified. AR 101-17. On March 14, 2008, the ALJ issued an unfavorable decision. AR 27-37. On August 22, 2008, the Appeals Council denied Flores' request for review. AR 21-24. This lawsuit followed.

2. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

"Substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the Court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.

3. DISCUSSION

a. Disability

A person qualifies as disabled and is eligible for benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S.Ct. 376, 157 L.Ed. 2d 333 (2003).

b. The ALJ's Findings

The ALJ found that Flores has the following severe impairments: "back pain and depression." AR 32. He has the residual functional capacity ("RFC") to perform medium work "except that he cannot work on dangerous machinery and is limited to entry level work involving routine, repetitive tasks and things rather than people." AR 33. He cannot perform his past relevant work. AR 35. However, "there are jobs that exist in significant numbers in the national economy that the claimant can perform" including, for example, hand packager, industrial cleaner or kitchen helper. AR 36.

C. Flores' Credibility

"To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis." Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).

At Step One, "the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.' The claimant, however, 'need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.' 'Thus, the ALJ may not reject subjective symptom testimony . . . simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.'" Id. (citations omitted); Bunnell v. Sullivan, 947 F.2d 341, ...


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