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Fuchiem Saelee v. Michael J. Astrue

February 28, 2011

FUCHIEM SAELEE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, ORDER COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"). For the reasons that follow, this court orders that plaintiff's Motion for Summary Judgment is granted in part, and this matter is remanded pursuant to Sentence Four of 42 U.S.C. § 405(g), to the ALJ for further analysis as directed in this opinion. The Clerk is directed to enter judgment for plaintiff.

BACKGROUND

Plaintiff, born August 1, 1960, applied on November 23, 2005 for disability benefits. (Tr. at 66, 69.) Plaintiff alleged he was unable to work due to pain in his right arm and rib cage. (Id. at 77, 18.)

In a decision dated April 25, 2008, ALJ Peter F. Belli determined plaintiff was not disabled. The ALJ made the following findings:*fn1

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2010 (Exhibit 11D).

2. The claimant has not engaged in substantial gainful activity since October 26, 2005, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.). (Exhibit 10D).

3. The claimant has the following severe impairments: Status post surgical repair of the right elbow (olecration fracture with ORIF), and residuals of musculoskeletal injuries sustained in a motor vehicle accident (MVA) (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of medium work as defined in 20 CFR 404.1567(e) and 416.967(c)). Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he can also do sedentary and light work. Due to his language barrier, he is moderately impaired in his ability to understand, remember, and carry out detailed instructions.

6. The claimant is capable of performing his past relevant work as an Assembler. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).

7. The undersigned finds that the claimant has not been under a disability, as defined in the Social Security Act, from October 26, 2005 through the date of this decision (20 CFR 404.1520(f) and 416.920(f)). (Tr. at 18-23.)

ISSUES PRESENTED

Plaintiff has raised the following issues: A. Whether the ALJ Failed to Fulfill his Duty to Protect Plaintiff's Interests; and B. Whether the ALJ Failed to Properly Assess Plaintiff's Residual Functional Capacity and Therefore Improperly Found Plaintiff Capable of Performing His Past Work.

LEGAL STANDARDS

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) ...


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