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Palko v. Astrue

July 30, 2010

BRUNO PALKO, 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

Bruno Palko filed this action on July 20, 2009.*fn1 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on August 14 and 20, 2009. (Dkt. Nos. 8-9.) On January 22, 2010, 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 remands this matter to the Commissioner for proceedings consistent with this opinion.

I. PROCEDURAL BACKGROUND

On April 19, 2007, Palko filed an application for Supplemental Security Income ("SSI") alleging a disability onset date of February 2, 2004. Administrative Record ("AR") 8. The application was denied initially and upon reconsideration. AR 8, 38, 45. Palko requested a hearing before an Administrative Law Judge ("ALJ"), but failed to appear at the scheduled hearing on October 24, 2008. AR 31-35, 52. On January 13, 2009, the ALJ issued a decision denying benefits. AR 8-15. On May 8, 2009, the Appeals Council denied Palko's request for review. AR 1-3. 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

Palko has the following severe impairment: "degenerative disc disease." AR 10. Palko also has a medically determinable mental impairment of drug and alcohol abuse that "does not cause more than minimal limitation in [Palko's] ability to perform basic mental work activities and is therefore nonsevere." Id.

Palko has the residual functional capacity ("RFC") to perform a "limited range of light exertion. [Palko] can lift and carry 20 pounds occasionally and less than 20 pounds frequently. He can push and pull the same amount of weight. He can stand and walk for 6 hours out of an 8-hour work day, and he can sit without restriction. He can occasionally bend and ...


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