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Jessica S. Duran-Palmer v. Michael J. Astrue

September 23, 2011


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


Plaintiff filed a Complaint on September 21, 2010, seeking review of the denial by the Social Security Commissioner (the "Commissioner") of plaintiff's application for a period of disability and disability insurance benefits ("DIB"). On October 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 July 5, 2011 in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, remanding the matter 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 a period of disability and DIB on January 25, 2008.*fn1 (Administrative Record ("A.R.") 20, 122, 128.)*fn2 Plaintiff, who was born on September 17, 1980 (A.R. 122),*fn3 claims to have been disabled since July 13, 2006, due to: a learning disability; right eye blindness; left knee and ankle injuries; fibromyalgia; lupus; bronchitis/asthma; restless leg syndrome; rapid heartbeat; acid reflux; surgery/right eye; and closure of the esophagus. (A.R. 71, 75). Plaintiff has past relevant work experience as a tax preparer, hotel manager/assistant manager, executive chef, and fast food cook. (A.R. 27.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 71-79), plaintiff requested a hearing (A.R. 80-81). On July 29, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Michael D. Radensky (the "ALJ"). (A.R. 31-68.) At the hearing, testimony was given by medical expert Dr. Samuel Landau, M.D. (A.R. 39-44), and vocational expert Corinne J. Porter (A.R. 60-66). On November 23, 2009, the ALJ denied plaintiff's claim (A.R. 20-28), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 5-7). That decision is now at issue in this action.


The ALJ found that plaintiff has not engaged in substantial gainful activity since July 13, 2006, the alleged onset date of plaintiff's disability.*fn4 (A.R. 22.) The ALJ determined that plaintiff has the following severe impairments: fibromyalgia; obesity treated with gastric bypass surgery; possible amblyopia OD; chronic sprain of the right knee and ankle; and possible asthma.*fn5 (Id.) The ALJ also determined that plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the impairments listed in 20 C.F.R. § Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (A.R. 23.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform "the full range of light work as defined in 20 C.F.R. § 404.1467(b)," with the following exceptions:

[S]it eight hours in an eight-hour workday; stand/walk one hour in an eight-hour workday in ten to fifteen minute increments and use a cane or crutches as needed; climb stairs rarely, no ladders, work at heights or balancing; work should be air conditioned and free of excessive pollutants; and no binocular vision.

(A.R. 24.)

The ALJ concluded that plaintiff was capable of performing her past relevant work as a tax preparer. (A.R. 27.) The ALJ made this determination based on Ms. Porter's response to "a hypothetical question based on an individual with the claimant's age, education, and past work experience, with a residual functional capacity to full range of light work as defined in 20 C.F.R. § 404.1567(b)," and with the ALJ's listed exceptions. (Id.) Accordingly, the ALJ concluded that plaintiff has not been under a disability within the meaning of the Social Security Act from July 13, 2006, the alleged disability onset date, through the date of his decision. (A.R. 20, 28.)


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 ...

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