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Rosales v. Astrue

June 24, 2010

FELIPE GARCIA ROSALES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND (2) DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT [Docket Nos. 14, 15]

Plaintiff Felipe Garcia Rosales ("Plaintiff") moves for reversal of Defendant's decision to deny him disability benefits. Defendant Michael J. Astrue, in his capacity as Commissioner of the Social Security Administration, opposes Plaintiff's motion and cross-moves for summary judgment. Plaintiff filed an opposition to Defendant's motion. Neither side filed reply briefs. In his motion, Plaintiff argues the Administrative Law Judge ("ALJ") erred in his analysis of Plaintiff's residual functional capacity ("RFC") and past relevant work, and that with the proper RFC, Plaintiff cannot perform the jobs identified by the ALJ. For the reasons discussed below, the Court grants Plaintiff's motion for summary judgment, and denies Defendant's cross-motion for summary judgment.

I. BACKGROUND

Plaintiff is a 56-year old male with a sixth grade education. (Administrative Record ("AR") at 51.) On November 6, 2006, Plaintiff filed an application for disability insurance benefits alleging a disability onset date of April 26, 2005. (Id. at 107.) Plaintiff alleged he was disabled due to back and head injury, migraines and memory problems. (Id. at 121.) Plaintiff's claim was denied initially, (id. at 50), and upon reconsideration. (Id. at 74-79.)

Plaintiff thereafter filed a request for hearing by an ALJ. (Id. at 81.) ALJ Norman R. Buls held a hearing on May 8, 2008. (Id. at 27) Attorney Paul Johnson represented Plaintiff at the hearing. The ALJ heard testimony from Plaintiff, and concluded the hearing by sending Plaintiff out for an orthopedic consultative examination. (Id. at 46-47.)

Thomas A. Schweller, M.D. performed that examination on July 1, 2008. (Id. at 316.) Dr. Schweller had previously examined Plaintiff on February 27, 2007, at the request of the Department of Social Services ("Department"). (Id. at 269.) After his first examination of Plaintiff, Dr. Schweller's opinion of Plaintiff's functional capacity was as follows:

This gentleman would be able to stand and walk for two hours out of an eight-hour [sic] and sit for six hours out of an eight-hour day. He would be able to lift 20 pounds occasionally and 10 pounds frequently, with occasional limits in bending, stooping, and squatting. He would have no kneeling or crawling limitations. He should avoid above-eye-level reaching and repeated push/pull with the right upper extremity. He does not absolutely require an assistive device for ambulation but should avoid unprotected heights and exposure to moving machinery. (Id. at 271.) After Dr. Schweller's second examination, his opinion was as follows:

This gentleman would be able to sit, stand, and walk for six hours out of an eight-hour day. He would be able to lift 20 pounds occasionally and 10 pounds frequently, with occasional limits in bending, stooping, and squatting. He would have no kneeling or crawling limitations. He should avoid above-eye-level reaching and repeated push/pull with both upper extremities, but would have no upper extremity fine or gross manipulation limits. He does not require an assistive device for ambulation.

(Id. at 318.)

The Department also referred Plaintiff to Colette Valette, Ph.D. for a psychological consultation. (Id. at 139.) Dr. Valette examined Plaintiff on February 11, 2007, after which she stated: "It is estimated that the claimant is intellectually functioning in the low average range. Rule out Cognitive Disorder, NOS. Dysthymia was apparent. An appropriate specialist needs to comment on the claimant's physical functioning." (Id. at 264.) Dr. Valette opined that Plaintiff had no limitations in his ability to sustain an ordinary routine without sustained supervision, to complete simple tasks, and to avoid normal hazards, slight limitations in his ability to socially interact with others at an age-appropriate level, mild limitations in his ability to complete detailed tasks, and moderate limitations in his ability to understand instructions, complete complex tasks, and to concentrate for at least two-hour increments at a time. (Id. at 265.)

On January 8, 2009, ALJ Buls issued a written decision finding Plaintiff not disabled. (Id. at 18-24.) Plaintiff filed a request for review of that decision, (id. at 10), which the Appeals Council denied on June 1, 2009. (Id. at 6-8.) Plaintiff filed the present case on October 8, 2009.

II. DISCUSSION

Plaintiff argues the ALJ erred in his analysis of Plaintiff's past relevant work and RFC. Plaintiff asserts these errors warrant reversal and remand for an award of benefits. Defendant disputes whether there was any error, and asserts that even if there was, Plaintiff's case should be remanded for further proceedings, not an award of benefits.

A. Legal Standard

Under the Social Security Act, "disability" is defined as the: inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.

42 U.S.C. § 423(d)(1)(A). The impairment must be so severe that the claimant "is not only unable to do his previous work but cannot . . . engage in any other kind of substantial gainful work." 42 U.S.C. § 423(d)(2)(A). In addition, the impairment must result "from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory techniques." 42 U.S.C. § 423(d)(3).

A court cannot set aside a denial of benefits unless the Commissioner's findings are based upon legal error or are not supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986); Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to ...


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