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Carlos Romero v. Michael J. Astrue

April 8, 2011


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


Plaintiff filed a Complaint on March 29, 2010, seeking review of the denial by the Social Security Commissioner (the "Commissioner") of plaintiff's application for social security income ("SSI").*fn1 On April 21, 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on December 1, 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 or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.


Plaintiff filed an application for SSI on May 9, 2007. (Administrative Record ("A.R.") 110-16.) Plaintiff claims to have been disabled since May 1, 2007, due to psoriasis, psoriatic arthritis, osteoporosis, bodily pains, dermatitis, fatigue, hypertension, high blood pressure, mental health problems, depression, obsessive-compulsive disorder (OCD), anxiety, and problems concentrating. (A.R. 9, 51, 73-74, 110, 134.) Plaintiff has past relevant work experience as a construction worker, delivery truck driver, and assembler. (A.R. 17, 142-48.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 74-78, 80-84), plaintiff requested a hearing (A.R. 87, 90-99). On September 21, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Elizabeth R. Lishner (the "ALJ"). (A.R. 43-70.) Vocational expert Gregory S. Jones also testified. (Id.) On October 6, 2009, the ALJ denied plaintiff's claim (A.R. 9-19), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-3). That decision is now at issue in this action


The ALJ found that plaintiff has not engaged in substantial gainful activity since May 9, 2007, the date of plaintiff's application for SSI. (A.R. 11.) The ALJ determined that plaintiff has the following severe impairments: psoriasis, psoriatic arthritis, and osteoporosis. (Id.) The ALJ also determined that plaintiff does not have an impairment or combination of impairments that meets or equals in severity any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). (A.R. 14-15.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform "'light' work as defined in 20 C.F.R. § 416.967(b)." (A.R. 15.) The ALJ limited plaintiff, however, "to standing and/or walking no more than 2 hours total per 8-hour workday (but must be able to get up at will); sitting 6 hours total per 8-hour workday; no crouching, climbing ladders, ropes or scaffolds; and occasional stooping and stair climbing." (Id.)

The ALJ concluded that plaintiff is unable to perform his past relevant work. (A.R. 17.) However, having considered plaintiff's age, education, work experience, RFC, as well as the testimony of the vocational expert, the ALJ found that jobs exist in the national economy that plaintiff can perform, including that of bench assembler. (A.R. 18.) Accordingly, the ALJ concluded that plaintiff has not been disabled within the meaning of the Social Security Act since May 9, 2007, the date plaintiff filed his application. (A.R. 9, 19.)


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, 495 F.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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