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Arturo Salgado v. Michael J. Astrue

February 22, 2011

ARTURO SALGADO, 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 THE COMMISSIONER OF SOCIAL SECURITY

PROCEEDINGS

On April 7, 2010, Arturo Salgado ("Plaintiff" or "Claimant") filed a Complaint seeking review of the decision by the Commissioner of the Social Security Administration ("Commissioner") denying his application for disability benefits under Titles II and XVI of the Social Security Act. On October 5, 2010, the Commissioner filed an Answer to the Complaint. On December 14, 2010, the parties filed a Joint Stipulation ("JS") setting forth their positions and the issues in dispute.

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

BACKGROUND

Plaintiff was born on May 12, 1967, and was 40 years old on his alleged disability onset date of November 16, 2007. (AR 113.) Plaintiff filed applications for Supplemental Security Income and Disability Insurance Benefits on February 23, 2009 (AR 111-21), and claims he is disabled due to epilepsy. (AR 138.) Plaintiff has not engaged in substantial gainful activity since November 16, 2007. (AR 13, 138.)

Plaintiff's claim was denied initially on April 20, 2009 (AR 44-47), and on reconsideration on June 19, 2009. (AR 51-56.) After filing a timely request for hearing, Plaintiff appeared with counsel and testified at a hearing held on October 29, 2009, before Administrative Law Judge ("ALJ") Jay E. Levine. (AR 25-39.) The ALJ issued a decision denying benefits on December 10, 2009. (AR 11-17.) On January 18, 2010, Plaintiff filed a timely request for review of the ALJ's decision. (AR 4.) The Appeals Council denied review on February 26, 2010. (AR 5-7.) Plaintiff then commenced the present action.

DISPUTED ISSUES

As reflected in the Joint Stipulation, there are two disputed issues:

1. Whether the ALJ properly considered Plaintiff's inability to communicate in English at step five of the sequential evaluation; and

2. Whether the ALJ should have asked the vocational expert specific questions about Plaintiff's seizures. (JS at 2.)

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 free of legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991) (ALJ's disability determination must be supported by substantial evidence and based on the proper legal standards).

Substantial evidence means "'more than a mere scintilla,' but less than a preponderance." Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a ...


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