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Kelly v. Astrue

October 26, 2010

ROGER T. KELLY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge

MEMORANDUM OPINION

I. SUMMARY

On October 20, 2009, plaintiff Roger T. Kelly ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; October 26, 2009 Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.*fn1

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

On January 6, 2006, plaintiff filed an application for Disability Insurance Benefits. (Administrative Record ("AR") 166-68). Plaintiff asserted that he became disabled on February 1, 2005, due to fibromyalgia, chronic fatigue, and depression. (AR 187). The ALJ examined the medical record and heard testimony from plaintiff, who was represented by counsel, on August 19, 2008. (AR 45-79). A vocational expert testified at a separate hearing, on February 4, 2009, at which neither plaintiff nor his representative was present. (AR 39-44).

On April 16, 2009, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 26-37). Specifically, the ALJ found:

(1) plaintiff suffered from the severe impairments of fibromyalgia and a depressive disorder (AR 29); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 29); (3) plaintiff retained the residual functional capacity to perform medium work with certain limitations (AR 30); and (4) plaintiff was capable of performing his past*fn2 relevant work as a loan officer (AR 36).

The Appeals Council denied plaintiff's application for review. (AR 14-16).

III. APPLICABLE LEGAL STANDARDS

A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that he is unable to engage in any substantial gainful activity by reason of a 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 at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. ...


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