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Perez v. Astrue

March 18, 2010


The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge


Plaintiff Rigoberto Perez seeks judicial review of the Commissioner's final decision denying his application for Social Security disability benefits. For the reasons stated below, the decision of the Social Security Commissioner is reversed, and the matter is remanded for further proceedings.

I. Facts and Procedural History

On February 9, 2005, Plaintiff filed an application for Social Security disability insurance benefits, alleging that he became disabled and unable to work on April 1, 2003. (Administrative Record ["AR"] at 18, 59.) Plaintiff's application was denied initially on July 7, 2005, and again upon reconsideration on September 28, 2005. (AR at 18, 43-56.)

Plaintiff was born on June 10, 1977, and was 27 years old at the time of the application was filed. He has a high school education and is able to communicate in English. (AR at 24, 71.) Plaintiff had worked as a car mechanic at a Toyota dealership. Plaintiff claims that he was injured at work, and he has not worked since his disability onset date. (AR at 24, 76, 149-50, 164-66.)

On August 15, 2008, plaintiff, his attorney, a vocational expert ("VE"), and a non-examining medical expert, clinical psychologist Dr. David Glassmire, appeared at a hearing before Administrative Law Judge ("ALJ") Thomas J. Gaye. (AR at 659-686.) Plaintiff's attorney stated at the hearing that Plaintiff still had a California state workers' compensation case pending regarding his past work at Toyota. (AR at 685.)

On September 12, 2008, the ALJ issued his decision, finding that plaintiff was not disabled within the meaning of the Social Security Act. (See AR at 15-25.) The ALJ found that plaintiff suffered from the following severe impairments: (1) mild lumbar degenerative disc disease, (2) lumbar spondylosis, (3) right shoulder impingement, (4) obesity, (5) diabetes mellitus, (6) migraine headaches, (7) a psychotic disorder, i.e., schizophrenia, (8) a depressive disorder, and (9) an obsessive compulsive personality disorder ("OCD"). (AR at 20.) Nevertheless, the ALJ found that while Plaintiff could not perform "the full range of light work" as defined in 20 C.F.R. § 404.1567(b), Plaintiff retained the residual functional capacity ("RFC") to perform light work with restrictions to "occasional overhead reaching on the right and occasional postural restrictions, simple repetitive tasks with no contact with the public and only occasional nonintense contact with others, [and] no tasks requiring hypervigilence." (AR at 21, 25.) In light of the RFC and these restrictions, the ALJ found that plaintiff was unable to perform his past relevant work; but the ALJ found, based on the VE's testimony, that plaintiff could nonetheless perform work as an electrical assembler, a hand packager, or a packing machine operator. (AR at 25.)

Plaintiff filed a Request for Review of the ALJ's decision with the Social Security Appeals Council, and on January 12, 2009, that request was denied. (AR at 4-8.)

The parties filed a Joint Stipulation ("JS") of disputed issues on February 18, 2010. Plaintiff contends that: (1) the ALJ did not properly determine Plaintiff's RFC and ability to sustain work activity; (2) the ALJ did not properly evaluate Plaintiff's combined impairments; (3) the ALJ did not properly consider Plaintiff's testimony at the hearing; and (4) the ALJ improperly relied on the VE's testimony at the hearing. (JS at 8.) Plaintiff requests reversal of the ALJ's decision and an immediate award of benefits. (JS at 39-40.) The Commissioner requests that the ALJ's decision be affirmed. (JS at 41.) The Joint Stipulation of the parties has been taken under submission without oral argument.

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Social Security Commissioner's decision to deny benefits. The Commissioner's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097-98 (9th Cir. 1999) (citations omitted); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means more than a scintilla, but less than a preponderance; it is evidence that a reasonable person might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. Discussion

A. Issues Nos. 1, 2 and 3: ALJ's Consideration of Combined Impairments and Plaintiff's Testimony in Assessing RFC

Since the first three issues raised by Plaintiff all concern the ALJ's assessment of Plaintiff's RFC, this Court will consider those three issues together.

Plaintiff argues that he has physical impairments which render him unable to sit, stand, or walk for prolonged periods of time; he is unable to sustain activity with his arms extended in front of him or overhead; and he has limitations from a broken right ankle suffered in childhood. (JS at 9) Plaintiff argues that Dr. Anh Tat Hoang, his treating workers' compensation doctor, restricted Plaintiff to lifting no more than 10 pounds and to limited twisting, turning, and torquing; and Plaintiff ...

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