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Karen Sewasky,*Fn1 v. Michael J. Astrue

July 26, 2011


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


Plaintiff filed a Complaint on February 8, 2010, 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 March 3, 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 November 12, 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 filed an application for a period of disability and DIB. (A.R. 9, 89-95, 112.) Plaintiff, who was born on August 4, 1966,*fn2 claims to have been disabled since June 13, 2005, due to bipolar disorder and affective mood disorder.*fn3 (A.R. 91, 101, 105; Joint Stip. at 2.) Plaintiff has past relevant work experience as an "inside salesperson with responsibility for training and personnel." (A.R. 33, 106.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 38-42, 45-49), plaintiff requested a hearing (A.R. 51, 55-56). On February 18, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge F. Keith Varni (the "ALJ"). (A.R. 17-35.) Vocational expert Joseph Mooney also testified. (A.R. 32-34.) On April 3, 2009, the ALJ denied plaintiff's claim (A.R. 9-16), 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 "meets the insured status requirements of the Social Security Act through December 1, 2010." (A.R. 11.) The ALJ also found that plaintiff has not engaged in substantial gainful activity since June 13, 2005, the alleged onset date of her claimed disability. (Id.) The ALJ further found that, at the time of the alleged onset date, plaintiff was a "younger individual" with "at least a high school education." (A.R. 15.) The ALJ determined that plaintiff has "a severe mental impairment from substance abuse and a resulting mood disorder." (A.R. 11.) The ALJ also determined that plaintiff "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." (A.R. 11-12.)

The ALJ determined that plaintiff has the residual functional capacity ("RFC") "to perform a full range of work at all exertional levels but mentally, [plaintiff] can perform routine, repetitive entry level work that is minimally stressful, requires no contact with the general public and only superficial interpersonal contact with co-workers and supervisors." (A.R. 12.)

The ALJ concluded that plaintiff is unable to perform her past relevant work. (A.R. 14.) However, having considered plaintiff's age, education, work experience, and RFC, as well as the testimony of the vocational expert, the ALJ found that jobs exist in the national economy that plaintiff could perform, including those of cleaner, housekeeper, packager, and assembler. (A.R. 15.) Accordingly, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act from June 13, 2005, through the date of his decision. (A.R. 16.)


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 Human 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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