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Roulhac v. Astrue

September 21, 2009


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


Plaintiff filed a Complaint on January 4, 2008, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for supplemental security income ("SSI"). On February 4, 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 September 24, 2008, 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 seeks an order affirming the Commissioner's decision. The Court has taken the parties' Joint Stipulation under submission without oral argument.


On January 17, 2003, plaintiff protectively filed an application for SSI.*fn1 (Administrative Record ("A.R.") 38, 78-81, 435.) Plaintiff alleges an inability to work since January 17, 2003, due to HIV and complications therefrom, back and knee pain, fatigue, headaches, and depression. (A.R. 25, 50, 83.) She has past relevant work experience as a "cafeteria attendant, cashier II, home attendant, and child monitor." (A.R. 446-47.)

Plaintiff's application was denied initially, upon reconsideration, and by Administrative Law Judge Philip E. Moulaison in a written decision dated April 27, 2005. (A.R. 24-29, 50-54, 56-59.) On June 13, 2005, the Social Security Administration received plaintiff's request for review of the hearing decision (A.R. 11), and on June 25, 2005, the Appeals Council denied review of the decision (A.R. 8-10).

On August 3, 2005, plaintiff filed a Complaint in this Court in Case No. EDCV 05-00669. On March 8, 2007, this Court reversed the ALJ's decision and remanded the case for further administrative proceedings (the "2007 Order"). (A.R. 451-66.) On April 26, 2007, the Appeals Council remanded the case back to an Administrative Law Judge for compliance with this Court's 2007 Order.*fn2 (A.R. 479-82.)

On July 24, 2007, a remand hearing was held before Administrative Law Judge Lowell Fortune ("ALJ"). (A.R. 632-68.) On October 19, 2007, the ALJ issued an unfavorable decision; that decision is now at issue in this case. (A.R. 435-48.)


In his written decision, the ALJ found that plaintiff suffers from the following "severe" impairments: human immunodeficiency virus (HIV); chronic dislocation, left shoulder; mood disorder secondary to medical condition; and cocaine dependence. (A.R. 438.) The ALJ further found that plaintiff does not have an impairment or combination of impairments that meets or medically equals Listings 1.02B, 12.04, 12.09, or 14.08, or any other listed impairment set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)

The ALJ determined that plaintiff had the physical residual functional capacity to perform light exertion, and mentally, plaintiff is able to understand moderately detailed instructions and perform moderately complex tasks in a habituated setting. (A.R. 436.) In reliance on the opinion of the medical expert, the ALJ rejected the opinions of plaintiff's treating physicians, Harvey A. Elder, M.D., and Wilfred W. Shiu, M.D. (A.R. 441, 445-46.)

Based on the ALJ's residual functional capacity assessment and the testimony of a vocational expert, the ALJ found that plaintiff is unable to perform any of her past relevant work, but jobs exist in significant numbers in the national economy that plaintiff can perform. (A.R. 446-47.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined by the Social Security Act, since February 7, 2003, the date the application was filed, through April 30, 2005. (A.R. 448.)


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 ...

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