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McGensy v. Astrue

May 11, 2010

BRIGITTE LAZETTE MCGENSY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Brigitte Lazette McGensy ("McGensy")*fn1 filed a Complaint on February 2, 2009. Pursuant to 28 U.S.C. § 636(c), the parties filed Consents to proceed before Magistrate Judge Rosenberg on February 17 and March 9, 2009. (Dkt. Nos. 8-9.) On September 3, 2009, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The Commissioner filed the certified administrative record ("AR"). The Court has taken the Joint Stipulation under submission without oral argument.

Having reviewed the entire file, the Court remands this matter to the Commissioner for proceedings consistent with this Opinion.

I. PROCEDURAL BACKGROUND

On March 27, 2006, McGensy filed applications for disability insurance benefits and supplemental security income benefits. AR 49, 124-35. The applications were denied initially and upon reconsideration. AR 45-46. McGensy requested a hearing. AR 64. On October 24, 2007, an Administrative Law Judge ("ALJ") conducted a hearing at which McGensy and two medical experts testified. AR 5-21. On December 18, 2007, the ALJ conducted a supplemental hearing at which McGensy, a medical expert (psychiatry) and a vocational expert ("VE") testified. AR 22-44. On March 27, 2008, the ALJ issued a decision denying benefits. AR 47-56. McGensy requested review. AR 122. On November 28, 2008, the Appeals Council denied McGensy's request for review. AR 1-4. This lawsuit followed.

II. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Moncada, 60 F.3d at 523; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523.

III. EVALUATION OF DISABILITY

A. Disability

A person qualifies as disabled and is eligible for benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S.Ct. 376, 157 L.Ed. 2d 333 (2003).

B. The ALJ's Findings

The ALJ found that McGensy has the following severe combination of impairments: "morbid obesity, asthma, hypertension, history of right rotator cuff injury and repair, and major depressive disorder." AR 51. The ALJ determined that McGensy has, "and never lost for any significant period of time," the residual functional capacity ("RFC") to perform light work except: "balance, stoop, crouch, or climb stairs occasionally, less than occasional kneeling, no significant crawling or climbing of ladders or scaffolds, occasional overhead reaching with the right arm, no significant exposure to extreme heat or extreme cold, concentrated exposure to humidity or wetness, no significant exposure to pulmonary irritants such as dust or fumes or hazards such as unprotected heights and dangerous or fast moving machinery." AR 53. In addition, McGensy "has never lost for any significant period of time the residual functional capacity to perform at least simple, repetitive tasks in a habituated work setting involving only occasional non-intense interaction ...


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