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Cheryl J. Peterson v. Michael J. Astrue

December 17, 2010

CHERYL J. PETERSON, 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*fn1 now rules as follows with respect to the disputed issues listed in 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 evaluated Plaintiff's subjective complaints of pain; and

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

(JS at 4.)

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 impairments of arthritis of the left hip, right shoulder, and left knee; and left bunion and hammer toes with potential for surgical intervention. (Administrative Record ("AR") at 55.) He also found that Plaintiff has the residual functional capacity to perform a narrowed range of sedentary work, with the following limitations: Plaintiff is able to lift and/or carry twenty pounds occasionally and ten pounds frequently; she can stand and/or walk for fifteen to thirty minutes at one time with the use of a cane as needed, and can carry on this way for one hour out of an eight-hour period; she can sit for seven hours with normal breaks, such as every two hours; she cannot walk on uneven surfaces, climb stairs or ladders, work at heights, or balance; she cannot work above shoulder level on the right due to arthroscopic surgery on the right shoulder and decompression in September 2007; she cannot operate foot pedals on the left side due to her left lower extremity impairments; she can occasionally bend and stoop; she can perform simple, repetitive tasks; she must be able to lie down during the lunch break and would miss work two days a month. (Id. at 56-57.) Relying on the testimony of a vocational expert ("VE"), the ALJ concluded that Plaintiff was capable of performing work as a small items assembler (such as hospital products or eyeglasses), and charge account clerk. (Id. at 62.)

B. The ALJ's Credibility Determination.

Plaintiff contends that the ALJ failed to articulate sufficient reason for rejecting her subjective complaints of impairment. (JS at 4-12.) Specifically, at the hearing, Plaintiff testified about the nature and extent of her condition. She testified that: she suffers from pain and swelling in the hips, shoulder, left knee, and left foot (AR at 13-14); her foot and knee pain are the most severe, and the pain is the biggest obstacle to working (id. at 26-27); her foot pain is a 9.5 out of 10, and she could not do a sitting job due to pain (id. at 30); she has problems with weight bearing, and although she has pain when sitting, it is worse standing (id. at 22); she cannot be on her feet two hours a day, sit for more than fifteen to thirty minutes at a time, and needs to lie down during the day (id. at 24, 58); she takes Narco and Ibuprofen, and ...


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