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Patrich Ware v. Michael J. Astrue

October 26, 2011

PATRICH WARE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

The Court now rules as follows with respect to the two disputed issues *fn1 listed in the Joint Stipulation ("JS"). *fn2

I. DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff as the grounds for reversal and/or remand are as follows:

(1) Whether the Administrative Law Judge ("ALJ") properly considered the lay witness' statements; and

(2) Whether the ALJ properly determined Plaintiff was capable of his past relevant work.

(JS at 2-3.)

II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

III. DISCUSSION

A. The ALJ's Findings.

The ALJ found that Plaintiff has severe neurological and musculoskeletal impairments. (AR at 11.) He also found that Plaintiff's medically determinable impairments do not cause more than minimal limitation in his ability to perform basic work activities. (Id.)

The ALJ further found that Plaintiff had the residual functional capacity ("RFC") to perform medium work with occasional climbing of ramps and ladders, balancing, stooping, kneeling, crouching, or crawling. (Id. at 15.) However, he is precluded from climbing ladders, ropes, or scaffolds, and from work around hazards "(unprotected heights, moving machinery, etc.)." (Id.)

At step four the ALJ determined that Plaintiff had not met his burden to prove that he could not perform any past relevant work. (Id. at 16.) He specifically found that based on Plaintiff's RFC, Plaintiff is capable of performing his past relevant work, as actually and generally performed, as a cashier in a pizza restaurant (Dictionary of Occupational Titles ("DOT") 311.472-010), as an oil technician changer (DOT 915.687-018), as a water inspector (DOT 915.587-010), and as a security guard (DOT 372.667-038). (AR at 19.) In the alternative, at step five, relying on the Medical-Vocational Guidelines, the ALJ found that considering Plaintiff's RFC, age, education, *fn3 and work experience, Plaintiff's only occasional limitation in postural activities would have "no ...


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