The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge
Plaintiff filed a Complaint on October 16, 2007, appealing a final administrative decision denying Disability Insurance Benefits ("DIB") and Supplemental Security Income (SSI) benefits. Defendant filed an Answer on February 20, 2008. Both parties consented to proceed before the undersigned United States Magistrate Judge on February 28, 2008. The matter has been taken under submission.
Plaintiff applied for SSI benefits on December 9, 2002, asserting a disability onset date of July 22, 2002 due to diabetes and depression. (A.R. 77-8, 87). On December 13, 2002, Plaintiff filed an application for DIB, alleging inability to perform his past relevant work. (A.R. 63, 77-8). The Social Security Administration (SSA) denied the claims initially and on reconsideration. Plaintiff filed a request for hearing before an Administrative Law Judge (ALJ) on September 15, 2003. (A.R. 42).
Following the hearing on August 11, 2004, the ALJ concluded that Plaintiff was able to perform past relevant work, and denied benefits. (A.R. 39, 48). Plaintiff filed a request for review of the ALJ Decision from the Appeals Council on February 3, 2005, and was granted a review under the substantial evidence and new and material evidence provisions of the Social Security Administration regulations. (A.R. 53, 55).
On November 4, 2005, the Appeals Council vacated the hearing Decision and remanded the case for further proceedings, ordering the ALJ to: (1) give further consideration to claimant's residual functional capacity (RFC) and provide rationale with specific references to evidence; (2) obtain additional evidence concerning claimant's alleged impairments in order to complete the administrative record; (3) further evaluate the claimant's mental impairment; and (3) further evaluate the claimant's subjective complaints and provide the rationale for evaluation of symptoms. (A.R. 53-4).
A new hearing was held before a second ALJ on November 7, 2006. (A.R. 2006). Following the orders of the Appeals Council, the ALJ concluded that Plaintiff was not and had not been disabled during the period alleged through the date of the Decision. (A.R. 19, 27). The ALJ determined that Plaintiff had impairments from chronic adjustment disorder and obesity, but that Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the "listed impairments". Furthermore, the ALJ found that: (1) Plaintiff's subjective statements regarding symptoms were not credible to the extent that they constitute an allegation that the Plaintiff is precluded from engaging in all substantial gainful activity for a period of 12 continuous months or more; (2) Plaintiff retains a residual functional capacity to perform light work activity; and (3) taking into account Plaintiff's education, age, employment experience, and capacity for light work, Plaintiff is able to perform past work as a security guard. (A.R. 26-7).
Plaintiff requested review of the second ALJ Decision from the Appeals Council on February 2, 2007, which was denied on August 11, 2007. (A.R. 6, 13). This action followed.
III. CONTENTIONS OF THE PARTIES
Plaintiff contends that: (1) the ALJ improperly rejected the opinions of treating physicians; (2) the ALJ erred by failing to find that diabetes with neuropathy was a severe impairment at step two of the sequential evaluation; (3) the ALJ failed to consider Plaintiff's obesity in determining the Plaintiff's residual functional capacity (RFC); and (4) the ALJ improperly evaluated the Plaintiff's testimony.
Defendant asserts that the ALJ properly weighed the medical opinions of the treating physicians and provided specific, legitimate reasons for not relying on them. Also, Defendant contends that the evidence does not support a claim of neuropathy and, even if Plaintiff did suffer neuropathy, the record does not show that he was severely limited from doing basic work activities. Defendant additionally asserts that the ALJ properly considered the impact Plaintiff's obesity had on his ability to do work related activities. Finally, Defendant maintains that the ALJ properly assessed Plaintiff's testimony and provided clear and convincing reasons for finding Plaintiff's allegations about the severity of his symptoms to be less than fully credible.
Under 42 U.S.C. §405(g), this court reviews the ALJ's decision to determine if: (1) the ALJ's findings are supported by substantial evidence; and (2) the ALJ used proper legal standards. DeLorme v. Sullivan, 924 F.2d 841 (8th Cir. 1991). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401 (1971), but less than a preponderance." Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). This court cannot disturb the ALJ's findings if those findings are supported by substantial evidence, even though other evidence may exist which supports Plaintiff's claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, Torske v. Weinberger, 417 U.S. 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971).
It is the duty of this court to review the record as a whole and to consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). The court is required to uphold the decision of the ALJ where evidence is susceptible to more than one rational interpretation. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). The court has the authority to affirm, modify, or reverse the ALJ's decision "with or without remanding the cause for rehearing." 42 U.S.C. §405(g). Remand is ...