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Gustavis v. Astrue

October 26, 2009

PAMELA GUSTAVIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

The Court*fn1 now rules as follows with respect to the four disputed issues listed in the Joint Stipulation ("JS").*fn2

I. DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues which Plaintiff is raising as the grounds for reversal and/or remand are as follows:

1. Whether the Administrative Law Judge ("ALJ") properly considered the treating psychiatrist's opinion;

2. Whether the ALJ properly considered the severity of Plaintiff's mental impairment;

3. Whether the ALJ properly considered Plaintiff's testimony regarding the need to use a wheelchair; and

4. Whether the ALJ posed a complete hypothetical question to the vocational expert ("VE").

(JS at 2-3.)

II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

III. DISCUSSION

A. The ALJ Failed to Properly Considered the Opinions of the Treating Psychiatrist

On June 26, 2007, Imelda Alfonso, M.D., Plaintiff's treating psychiatrist, completed a Medical Opinion Re: Ability to do Work-Related Activities (Mental) questionnaire on behalf of Plaintiff, in which she indicated on a check-off form that Plaintiff is "unable to meet competitive standards" in a multitude of areas including: the ability to remember work-like procedures; ability to understand and remember very short and simple instructions; ability to carry out very short and simple instructions; ability to maintain attention for two hour segment; ability to maintain regular attendance and be punctual with customary, usually strict tolerances; ability to deal with stress of semiskilled and skilled work; ability to understand and remember detailed instructions; ability to carry out detailed instructions; ability to sustain an ordinary routine without special supervision; ability to work in coordination with or proximity to others without being distracted by them; ability to make simple work-related decisions; ability to interact appropriately with the general public; ability to maintain socially appropriate behavior; ability to ask simple questions or request assistance; ability to accept instructions and respond appropriately to criticism from supervisors; ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; ability to respond appropriately to changes in the work setting; ability to be aware of normal hazards and take appropriate precautions; ability to set realistic goals or make plans independently of others; ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform a consistent pace without an unreasonable number and length of rest periods; ability to travel in unfamiliar places or use public transportation; and ability to deal with normal work stress. (AR at 238-39.) Dr. Alfonso also checked off that Plaintiff is ...


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