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Caren Cunningham v. Michael J. Astrue

December 1, 2010

CAREN CUNNINGHAM, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER

PROCEEDINGS

On September 14, 2009, Caren Cunningham ("Plaintiff" or "Claimant") filed a complaint seeking review of the decision by the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for Supplemental Social Security income ("SSI") benefits. The Commissioner filed an Answer on March 15, 2010. On June 17, 2010, the parties filed a Joint Stipulation ("JS").

Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the Magistrate Judge. The matter is now ready for decision. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision should be affirmed and the case dismissed with prejudice.

BACKGROUND

Plaintiff is a 39 year old female who was determined to have the medically determinable severe impairments of degenerative disc disease of the lumbar spine, chronic obstructive pulmonary disease secondary to tobacco abuse and somatoform disorder. (AR 10.) Plaintiff has not engaged in substantial gainful activity since the July 13, 2006, application date. (AR 10.)

Plaintiff's claim for SSI benefits was denied initially on December 16, 2006, and on reconsideration on September 14, 2007. (AR 8.) She filed a timely request for hearing, which was held before Administrative Law Judge ("ALJ") F. Keith Varni on January 6, 2009, in San Bernardino, California. (AR 8.) Claimant appeared and testified. (AR 8.) So did vocational expert Joseph M. Mooney. (AR 8.)

The ALJ issued an unfavorable decision on May 8, 2009. (AR 8-17.) The ALJ concluded that Claimant's impairments did not meet or equal a listing (AR 13-14) and assessed a residual functional capacity ("RFC")*fn1 for light work with a limitation of standing or working for 2 hours in an 8 hour workday. (AR 12.) Non-exertional limitations include "never climbing ladders, ropes or scaffolds; occasionally climbing ramps or stairs; occasionally balancing, stooping, kneeling, crouching and crawling; avoiding all exposure to hazards such as dangerous moving machinery, electric shock, radiation and unprotected heights; avoiding concentrated exposure to extreme cold; and mentally limited to unskilled work (simple, routine and repetitive tasks) in a nonpublic work environment." (AR 12.) The ALJ discredited Plaintiff's credibility as to her alleged subjective pain symptoms (AR 13-15), a finding not challenged by Plaintiff.

The ALJ found that Claimant is unable to perform her prior work as a smoke shop cashier, casino cashier, and gas station cashier. (AR 15.) The ALJ, however, concluded that there were other jobs in the national economy that Plaintiff could perform, including table worker, small part or bench assembler and polisher/finisher. (AR 16.) Consequently, the ALJ found Claimant not disabled within the meaning of the Social Security Act. (AR 16.)

DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues that Plaintiff is raising as grounds for reversal are as follows:

1. Whether the ALJ properly developed the record.

2. Whether the ALJ properly considered the treating doctor's opinion regarding Plaintiff's medication side effects.

3. Whether the ALJ properly considered the consultative examiner's opinion.

4. Whether the ALJ properly considered the treating physician's opinion and properly developed the record regarding Plaintiff's need for a walker or cane.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ'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." Saelee v. Chater, 94 ...


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