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Anthony M. Herrera v. Michael J. Astrue

June 9, 2011

ANTHONY M. HERRERA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER

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, plaintiff's Motion for Summary Judgment is denied, and the Commissioner's Motion for Summary Judgment is granted. The Clerk is directed to enter judgment for the Commissioner.

BACKGROUND

Plaintiff, born August 5, 1956, applied for disability benefits on October 24, 2006. (Tr. at 106, 111.) Plaintiff alleged he was unable to work since September 27, 2006, due to personality disorders, substance addiction/dependence disorders, equilibrium problems, mood swings, plastic jaw, anger issues, behavioral problems, forgetfulness, and plastic knee caps in both knees. (Tr. at 106, 64, 72, 80.) In a decision dated July 25, 2008, ALJ Daniel Heely determined that plaintiff was not disabled. The ALJ made the following findings:*fn1

1. The claimant met the insured status requirements of the Social Security Act through June 30, 2006.

2. The claimant has not engaged in substantial gainful activity since October 1, 2005, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).

3. The claimant has the following severe impairment: antisocial personality disorder (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 a full range of work at all exertional levels but with the following exertional limitations: he can perform only simple, routine, repetitive tasks; he can have only occasional contact with the general public.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on August 5, 1956 and was 49 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date. The claimant attained age 50, which is defined as approaching advanced age, on August 4, 2006 (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).

11. The claimant has not been under a disability, as defined in the Social Security Act, from October 1, 2005 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. at 14-21.)

ISSUES PRESENTED

Plaintiff has raised the following issues: A. Whether the ALJ Improperly Rejected the Examining Psychologist's Opinion Without Articulating a Legitimate Basis; B. Whether the Appeals Council Failed to Properly Evaluate Dr. Forehand's Treating Psychiatric Opinion; C. Whether the ALJ Improperly Rejected Plaintiff's and Lay Witness Testimony; and D. Whether the ALJ Failed to Credit the Vocational Expert's Testimony in Response to a Hypothetical Which Accurately Reflected Plaintiff's Functional Limitations.

This case involves plaintiff's alleged mental health issues only.

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. ...


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