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Hacker v. Astrue

March 31, 2010


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


Plaintiff filed a Complaint on November 13, 2008, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for supplemental security income ("SSI"). On January 22, 2009, the parties consented to proceed before the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on July 14, 2009, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, alternatively, remanding the case to the Commissioner for a new administrative hearing; and defendant asks that the Commissioner's decision be affirmed. The Court has taken the parties' Joint Stipulation under submission without oral argument.


Plaintiff filed his application for SSI on January 23, 2006, alleging an inability to work since January 22, 2003, due to hypertensive vascular disease and anxiety disorders. (Administrative Record ("A.R.") 42.) He has no past relevant work experience.*fn1 (A.R. 12.)

The Commissioner denied plaintiff's claim for benefits initially and upon reconsideration. (A.R. 46-50, 54-59.) On January 3, 2008, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Jay E. Levine ("ALJ"). (A.R. 14-41.) On February 28, 2008, the ALJ denied plaintiff's claims (A.R. 7-13), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-3).


The ALJ found that plaintiff, who was 43 years old at the time of the hearing, has not engaged in substantial gainful activity since his alleged disability onset date. (A.R. 10.)

The ALJ determined that plaintiff has a "severe" combination of impairments, consisting of generalized anxiety disorder, obesity, gastroesophageal reflux disease, and hypertension with a history of chest pain, palpitations, and occasional dizziness. (A.R. 10.) The ALJ found that plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)

The ALJ further found that plaintiff has the residual functional capacity ("RFC") to perform all light work, except he must have "no significant exposure to hazards such as unprotected heights or dangerous machinery, and no production quota work." (A.R. 11.) The ALJ found that plaintiff has no past relevant work but that, considering plaintiff's age, education, work experience and RFC, there are jobs that exist in significant numbers in the national economy that plaintiff can perform. (Id.)

Accordingly, the ALJ concluded that plaintiff has not been under a disability within the meaning of the Social Security Act at any time through the date of the ALJ's decision. (A.R. 13.)


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 conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff alleges four issues: (1) whether the ALJ considered plaintiff's treating psychiatrist's opinion properly; (2) whether the ALJ considered the state agency findings properly; (3) whether the ALJ made proper credibility findings; and (4) whether the ALJ posed a complete hypothetical to the vocational expert. (Joint Stipulation ("Joint ...

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