Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mark J. Thun v. Michael J. Astrue

November 14, 2011

MARK J. THUN,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on March 18, 2011, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on April 4, 2011.

Plaintiff filed a motion for summary judgment on September 14, 2011. Defendant filed a motion for summary judgment on November 10, 2011. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed March 22, 2011.

BACKGROUND

Plaintiff, a former general contractor and concrete mason, asserted disability based on, inter alia, arthritis in all of his joints, shoulder problems, a skin condition, and pain (Administrative Record ("A.R.") 137-39, 146-48). An Administrative Law Judge ("ALJ") found that Plaintiff suffered from severe psoriasis, degenerative arthritis in his left shoulder, depression (not otherwise specified), discogenic disease of the lumbosacral spine and psoriatic arthritis (A.R. 18-19). However, the ALJ also found that these impairments were not disabling (A.R. 20-32).

The ALJ determined that Plaintiff retained the residual functional capacity for medium work with the following limits:

[Plaintiff] can stand or walk no more than 5 hours in an 8 hour day; he can sit no more than 6 hours in an 8 hour day; he can lift no more than 20 pounds frequently and 40 pounds occasionally; he can do only occasional overhead reaching with the left, non-dominant arm; his fine fingering and gross handling abilities are limited to frequent, not constant; he must avoid unprotected heights and dangerous machinery; and he can handle simple and compleX instructions.

(A.R. 24, 26 (emphasis added); see also A.R. 86-88 (Plaintiff testifying that he could lift and carry 20 to 40 pounds, stand and walk "probably five hours" in an eight-hour workday, and sit without limitation)).*fn1 Relying on vocational expert testimony, the ALJ concluded that a person retaining this capacity could perform Plaintiff's past relevant work as a masonry contractor (A.R. 30-31 (adopting vocational expert testimony at A.R. 91-92)). The Appeals Council considered additional medical records submitted by Plaintiff, but denied review (A.R. 1-4, 271-369).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

Where, as here, the Appeals Council considered additional evidence but denied review, the additional evidence becomes part of the Administrative Record for purposes of the Court's analysis. See Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (in remanding administrative decision, the Ninth Circuit relied on treatment records submitted for the first time to the Appeals Council, which had considered the records in the context of denying review); Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993) ("[A]lthough the Appeals Council declined to review the decision of the ALJ, it reached this ruling after considering the case on the merits; examining the entire record, including the additional material; and concluding that the ALJ's decision was proper and that the additional material failed to provide a basis for changing the hearing decision. For these reasons, we consider on appeal both the ALJ's decision and the additional material submitted to the Appeals Council") (citations and quotations omitted); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("the Appeals Council considered this information ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.