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Atkinson v. Astrue

July 1, 2010

GERALD W. ATKINSON, 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

Gerald Atkinson filed this action on April 17, 2009. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on June 17 and June 23, 2009. On November 13, 2009, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The Court has taken the matter under submission without oral argument.

Having reviewed the entire file, the Court affirms the decision of the Commissioner.

I. PROCEDURAL BACKGROUND

On September 14, 2006, Atkinson filed an application for Supplemental Security Income benefits alleging a disability onset date of January 1, 2001. Administrative Record ("AR") 64-69. The application was denied initially and upon reconsideration. AR 45-49, 53-56. An Administrative Law Judge ("ALJ") conducted a hearing on June 16, 2008, at which a medical expert testified but Atkinson failed to appear. AR 21-29. On June 23, 2008, the ALJ issued a decision denying benefits. AR 38-44. On February 20, 2009, the Appeals Council denied Atkinson's request for review. AR 1-5. This action followed.

II. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if 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).

"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." Moncada, 60 F.3d at 523. In 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. When the evidence is susceptible to more than one rational interpretation, the Court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.

III. DISCUSSION

A. Disability

A person qualifies as disabled, and thereby eligible for such 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

Atkinson failed to attend a consultative physical examination ordered by the Agency. AR 41. Citing 20 C.F.R. ยง 416.918, the ALJ denied Atkinson's claim for disability based on his failure to appear at the examination. The ALJ then made the following additional findings: "[T]he objective medical evidence fails to establish the existence of a medically determinable impairment." AR 42. Even if Atkinson's allegations of "heart problems, diabetes, a right hand problem, and dry skin" ...


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