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Shafigi v. Astrue

November 23, 2009

SIRUS SHAFIGI, 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; ORDER

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

I. DISPUTED ISSUES

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

1. Whether the Administrative Law Judge ("ALJ") sustained his burden of proof at step 5 of the sequential evaluation process, or whether the ALJ properly determined that Plaintiff can engaged in other types of substantial gainful work existing in the national economy;

2. Whether the ALJ properly assessed Plaintiff's residual functional capacity ("RFC") at step 4 of the sequential evaluation process;

3. Whether the ALJ properly determined Plaintiff met Listing 3.02(C)(2); and

4. Whether the ALJ properly evaluated Plaintiff's credibility.*fn3 (JS at 4.)

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 Sustain His Burden of Proof at Step 5 of the Sequential Evaluation

Plaintiff contends that the ALJ erroneously determined that Plaintiff could perform other types of substantial gainful work existing in the national economy at step 5 of the sequential evaluation. (JS at 4-6.) Specifically, Plaintiff argues that the occupations identified by the vocational expert ("VE") conflict with Plaintiff's limitation from performing work at or above shoulder level. (Id.) Plaintiff also argues that the ALJ posed an incomplete hypothetical to the VE. (Id. at 5.)

1. Background

Here, the ALJ assessed Plaintiff's RFC as follows:*fn4

The claimant has the following residual functional capacity: he can perform light work, or work involving lifting objects weighing up to 20 pounds occasionally and up to ten pounds frequently. He is further limited to no more than occasional postural changes and cannot perform work at or above shoulder level or engaged in heavy pushing and pulling with his upper extremities. (Administrative Record ("AR") at 25.) Thus, Plaintiff is able to perform a limited range of light work.

At the hearing, the ALJ and Plaintiff's attorney engaged in the following discussion with the VE:

ALJ: [Assume Plaintiff to be] capable of performing light work with mild pain, which would include the ability to stand or walk six hours out of eight hours, sit six hours out of eight hours, and occasionally climb, balance, stoop, kneel, crouch and crawl.... And there should be no repetitive, overhead reaching or push/pull. So would there be entry level work he could perform? If so, what would the number of the jobs be?

VE: Yes, there would be jobs. And a person with that vocational profile would be able to perform jobs such as ticket taker - - 211.467-030... SVP two, light.... And there's approximately... 4,000 jobs in L.A., Orange and Riverside counties and 80,000 nationally. Could work as an [sic] cashier - - 211.462-010 - - SVP two, light. 44,000 jobs locally. 1,600,000 nationally. Could work as a storage facility clerk - -295.367-026 - - SVP two, light. 6,700 jobs locally and 128,000 nationally.

ALJ: And how about sedentary jobs?

VE: Would be able to perform the full range of sedentary unskilled employment. And that would include jobs such as order clerk - -209.567-014 - - 2,000 - - that's an SVP two, sedentary. 2,000 jobs locally. 20,000 nationally. Call out operator - - ...


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