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Perez v. Astrue

October 12, 2010

RANDALL PEREZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge

MEMORANDUM OPINION; ORDER

The Court now rules as follows with respect to the disputed issues listed in*fn1 the Joint Stipulation ("JS").*fn2

I. DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues which Plaintiff raises as the grounds for reversal and/or remand are as follows:

1. Whether the Administrative Law Judge ("ALJ") properly found that Plaintiff can perform the jobs of mail clerk in a private company, garment sorter, and electronics worker; and

2. Whether the ALJ properly considered the treating physician's opinion.

(JS at 1-2.)

II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

III. DISCUSSION

A. The ALJ's Findings

The ALJ found that Plaintiff has the severe impairment of HIV ("human immunodeficiency virus") infection, with diarrhea, primarily controlled with medication; sensory peripheral neuropathy, secondary to alcohol and medication; depressive and anxiety disorder; personality disorder, not otherwise specified; and alcohol dependence and abuse, in possible remission. (AR at 12.)

When including Plaintiff's substance abuse, the ALJ found Plaintiff had the*fn3 RFC to perform light exertional-level work except that he could not maintain concentration, persistence and pace; complete a normal workday and workweek without interruptions from psychologically based symptoms; or respond appropriately to changes in a work setting. (Id. at 13.) He concluded that based on Plaintiff's impairments, including the substance use disorder, Plaintiff could not perform his past relevant work as an intake coordinator, estimator with a printing company, or sales and service. (Id. at 13-14.) Nor were there any other jobs available that Plaintiff could perform. (Id. at 14.)

The ALJ also found, however, that if Plaintiff stopped his substance use, he would have the RFC to perform light exertional-level work except that he can only stand and/or walk four hours in an eight-hour workday, although he can sit eight hours in an eight-hour workday with normal breaks; can only occasionally stoop or bend; cannot climb ladders, ropes, or scaffolds; cannot work at heights or balance; cannot operate foot pedals or controls; cannot work with or around motorized equipment or at unprotected heights; and can only perform non-complex, non-public work, but nothing fast-paced. (Id. at 16.) He concluded that Plaintiff would not be able to perform his past relevant work. (Id. at 20.) However, relying on the testimony of the VE, the ALJ determined Plaintiff could perform the ...


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