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Lolita Rene Mcmillon v. Michael J. Astrue

September 12, 2011


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 16) and defendant's cross-motion for summary judgment (Doc. 20). For the reasons discussed below, the court will deny plaintiff's motion for summary judgment and grant defendant's cross-motion for summary judgment.


Plaintiff applied for supplemental security income ("SSI") on September 13, 2006 alleging an onset of disability on January 1, 2003 primarily due to mental impairments. Certified administrative record ("CAR") 93-96, 107, 181. Specifically, plaintiff claims disability due to depression, mood disorder, and post traumatic stress disorder ("PTSD").*fn2 CAR 107, 181. Plaintiff's claim was denied initially and upon reconsideration. CAR 64-65. Plaintiff requested an administrative hearing, which was held on August 6, 2008 before Administrative Law Judge ("ALJ") Theodore T.N. Slocum. CAR 31-63, 80. In an October 22, 2008 decision, the ALJ concluded that plaintiff was not disabled*fn3 based on the following findings:

1. The claimant has not engaged in substantial gainful activity since September 13, 2006, the application date.

2. The claimant has the following severe impairments: arthritis, Hepatitis C, hypertension, obesity, depression and mood disorder.

3. 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.

4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform significant range of light work as defined in 20 CFR 416.967(b). She is able to lift/carry 20 pounds occasionally and 10 pounds frequently; stand/walk for six hours in an eight-hour day with normal breaks; sit for six hours in an eight-hour day; and occasionally perform all postural activities other than climbing ramps and stairs which can be frequent. She is unable to push/pull with her lower extremities and is precluded from working with ladders, ropes, scaffolding, hazardous machinery and unprotected heights. She is to avoid concentrated exposure to extreme cold and heat, humidity, respiratory irritants or poor ventilation and moderate exposure to vibrations. She is not significantly limited in performing one/two-step work tasks and experiences slight limitations in concentration, persistence and pace and tasks associated with day-to-day work as attendance and moderate limitations in relating to supervisors and co-workers and in adapting to the stresses of normal work environments. She is precluded from complex tasks that include personal interaction.

5. The claimant is unable to perform any past relevant work. 6. The claimant was born on March 30, 1957 and was 49 years old, which is defined as a younger individual age 18-49, on the date the application was filed.

7. The claimant has an 11th grade limited education and is able to communicate in English.

8. The claimant's past relevant work is unskilled and semi-skilled.

9. Considering the claimant's age, education, work experience, and

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.

residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

10. The claimant has not been under a disability, as defined in the Social Security Act, since September 13, 2006, the date the application was filed.

CAR 7-19. After the Appeals Council declined review on January 15, 2010, this appeal followed. CAR 1-3.


The court reviews the Commissioner's final decision to determine whether it is:

(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).


Plaintiff argues that: A. The ALJ improperly omitted a material limitation from the hypothetical posed to the vocational expert; B. The ALJ failed to properly consider the treating physicians' opinions; and C. The Appeals Council erred in failing to remand for a ...

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