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Thomas W. Mcclain v. Michael J. Astrue

August 22, 2011

THOMAS W. MCCLAIN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). For the reasons that follow, Plaintiff's Motion for Summary Judgment is denied, the Commissioner's Cross Motion for Summary Judgment is granted, and the Clerk is directed to enter judgment for the Commissioner. BACKGROUND

Plaintiff, born August 30, 1955, applied on February 5, 2007 for disability benefits. (Tr. at 8, 37.) Plaintiff alleged that, as of June 1, 2006, he was unable to work due to a heart condition, sleep apnea, foot pain, hand pain, diabetes mellitus, shoulder pain, and depression . (Tr. at 14, 125.) In a decision dated February 24, 2009, ALJ Mark C. Ramsey determined that 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, 2011.

2. The claimant has not engaged in substantial gainful activity since June 1, 2006, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: diabetes mellitus; coronary artery disease, inferior myocardial infarction in 2001, status post stent placement; right shoulder pain secondary to status postoperative open reduction and internal fixation of the right shoulder glenoid; and obesity. (20 CFR 404.1521 et seq. and 416.921 et seq.).

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 404.1525, 404.1526, 404.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that he is limited to occasional over head reaching on the right.

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 30, 1955 and was 50 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onsent date (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 SSR 82-41 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 404.1569, 404.1569a, 416.969, and 416.969a).

11. The claimant has not been under a disability, as defined in the Social Security Act, from June 1, 2006 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

12. (Tr. at 11-17.) ISSUES PRESENTED

Plaintiff has raised the following issues: A. Whether the Appeals Council Failed to Properly Evaluate New and Material Evidence; B. Whether the ALJ Failed to Properly Credit Plaintiff's Testimony and Third Party Statements Regarding Plaintiff's Functional Limitations; and C. Whether the ALJ Erred in Utilizing the Grids Instead of a Vocational Expert.

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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