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Christina Palos v. Michael J. Astrue

March 1, 2011


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on December 3, 2009, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for a period of disability and disability insurance benefits ("DIB"). On January 6, 2010, the parties consented to proceed before the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on August 3, 2010, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and defendant requests that the Commissioner's decision be affirmed. The Court has taken the parties' Joint Stipulation under submission without oral argument.


Plaintiff applied for a period of disability and DIB. (Administrative Record ("A.R.") 129-31.) Plaintiff claims to have been disabled since September 21, 2003, due to bipolar disorder, attention deficit disorder ("ADD"), anxiety, nervousness, depression, poor sleep, mood swings, nausea, dizziness, shakiness, and an inability to concentrate. (See, e.g., A.R. 46, 56-57, 68, 71-72, 137, 168, 172, 193, 196.) Plaintiff later alleged an inability to work due to affective mood disorder. (See, e.g., Joint Stipulation ("Joint Stip.") at 2.) Plaintiff has past relevant work experience as a nurse assistant and emergency room clerk.*fn1 (A.R. 16.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 51-54, 57-61), plaintiff requested a hearing (A.R. 62). On March 19, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge John Kays (the "ALJ"). (A.R. 18-43.) Vocational expert Susan Allison, medical expert Dr. Craig Rath (a psychologist), and plaintiff's son Javier Palos also testified. (Id.) On September 2, 2009, the ALJ denied plaintiff's claim (A.R. 8-17), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-4). That decision is now at issue in this action.


The ALJ found that plaintiff has not engaged in substantial gainful activity since February 21, 2003, the alleged onset date of plaintiff's claimed disability. (A.R. 10.) The ALJ determined that plaintiff has the following severe impairments: bipolar disorder; and substance addiction disorder. (Id.) The ALJ also determined that if plaintiff stopped her substance abuse, she would not have an impairment or combination of impairments that meets or medically equals any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 404.1520(d)). (A.R. 11.)

The ALJ determined that, absent substance abuse, plaintiff would have the residual functional capacity ("RFC") to perform a "full range of work at all exertional levels but with the following non-exertional limitations: to avoid [having] more than [a] moderate degree of stress[ful] work, [being] in charge of [the] safety of others, working with dangerous equipment, and socially interacting with the general public." (A.R. 12.)

The ALJ concluded that plaintiff was unable to perform her past relevant work. (A.R. 15.) However, having considered plaintiff's age, education, work experience, and RFC, as well as the testimony of the vocational expert, the ALJ found that significant jobs exist in the national economy that plaintiff could perform, absent substance abuse, including sales attendant, cafeteria attendant, and general office clerk. (A.R. 16-17.) The ALJ further determined that plaintiff's substance abuse was a contributing factor material to the determination of disability, because plaintiff would not be disabled if she stopped her substance abuse. (A.R. 17.) Accordingly, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act from the alleged onset date through the date of his decision. (Id.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" ...

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