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Jose A Espinoza v. Michael J. Astrue

October 17, 2011


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


Plaintiff filed a Complaint on September 24, 2010, seeking review of the denial by the Social Security Commissioner (the "Commissioner") of plaintiff's application for a period of disability ("POD"), disability insurance benefits ("DIB"), and supplemental security income ("SSI"). 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 6, 2011, 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 or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.


On September 14, 2006, plaintiff filed an application for POD, DIB, and SSI. (Administrative Record ("A.R.") 48.) Plaintiff, who was born on July 6, 1965 (A.R. 54),*fn1 claims to have been disabled since August 15, 2006 (A.R. 48, 50), due to diabetes, high blood pressure, neuropathy, and skin infection (see, e.g., A.R. 299, 310). Plaintiff has past relevant work experience as a barber and building maintenance/laborer. (A.R. 54, 300.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 190-94, 200-05), plaintiff requested a hearing (A.R. 206). On December 3, 2008, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Michael D. Radensky (the "ALJ"). (A.R. 155-85.) At the hearing, medical expert Samuel Landau, M.D., and vocational expert Corrine J. Porter also testified. On March 23, 2009, the ALJ denied plaintiff's claims (A.R. 48-55), 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 has not engaged in substantial gainful activity since August 15, 2006, the alleged onset date of his disability. (A.R. 48, 50.) The ALJ determined that plaintiff has the following severe impairments: "diabetes mellitus with peripheral neuropathy and recurrent abscesses." (A.R. 50.) The ALJ also determined that plaintiff does not have an impairment or a combination of impairments that meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1525, 404.1526, 416.925, 416.926). (A.R. 51.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform sedentary work. (A.R. 51.) Specifically, the ALJ determined that plaintiff can: use a cane as needed, lift and carry 20 pounds occasionally, 10 pounds frequently, stand/walk two hours in an eight hour workday, sit for six hours in an eight hour workday, no operating foot pedals or controls, no climbing ladders, no work at heights or balancing, and work environment should be air conditioned.


The ALJ concluded that plaintiff is unable to perform his past relevant work. (A.R. 54.) However, having considered plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert, the ALJ found that jobs exist in the national economy that plaintiff could perform, including cashier II, small items assembly, charge account clerk, and inspectors production. (A.R. 54-55.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, from August 15, 2006, through the date of his decision. (A.R. 55.)


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 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.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff claims that the ALJ: (1) improperly considered and rejected the opinion of his treating physician; (2) failed to find that plaintiff suffers from a legally severe impairment attributable to his hands; and (3) improperly evaluated ...

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