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Gilbert Garcia v. Michael J. Astrue

December 9, 2011

GILBERT GARCIA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff filed a Complaint on July 29, 2010, seeking review of the denial of plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On August 11, 2010, the parties consented to proceed, pursuant to 28 U.S.C. § 636(c), before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation ("Joint Stip.") on April 5, 2011, in which: plaintiff seeks an order reversing the Commissioner's decision and directing the Commissioner to pay benefits to plaintiff or, alternatively, remanding for a new administrative hearing, awarding plaintiff costs and reasonable attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C.A. § 2412(d), and granting such other and further relief as this Court may deem just and proper; and the Commissioner requests that his decision be affirmed. The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

On September 6, 2006, plaintiff filed an application for a period of disability, DIB, and SSI. (Administrative Record ("A.R.") 12.) Plaintiff, who was born on June 16, 1964,*fn1 claims to have been disabled since September 2, 2002, due to ruptured discs in the neck and back and status post left shoulder surgery. (A.R. 95, 100; Joint Stip. at 2.) Plaintiff has past relevant work experience as a construction worker. (A.R. 18, 101.)

Plaintiff's claim was denied initially and upon reconsideration (A.R. 12, 55-59, 62-67); plaintiff then requested a hearing (A.R. 68). On April 11, 2008, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge F. Keith Varni (the "ALJ").*fn2 (A.R. 21-39.) On July, 25, 2008, the ALJ conducted another hearing, at plaintiff's request, during which vocational expert Joseph Mooney (the "VE") testified. (A.R. 40-50.) On August 26, 2008, the ALJ denied plaintiff's claim (A.R. 12-20), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-4). That decision is now at issue in this action.

SUMMARY OF ADMINISTRATIVE DECISION

The ALJ found that plaintiff has not engaged in substantial gainful activity since September 2, 2002, the alleged onset date of his disability. (A.R. 14.) The ALJ determined that plaintiff has a severe impairment of the musculoskeletal system. (Id.) The ALJ also determined that plaintiff does not have an impairment or combination of impairments that meets or medically equals in severity any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). (Id.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform a limited range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he is "precluded from activities which require forceful strength and repetitive manipulation with the left upper extremity." (A.R. 15.) The ALJ concluded that, with this RFC and limitations, plaintiff would be unable to perform his past relevant work. (A.R. 18.) However, having considered plaintiff's age, education, work experience, and RFC, as well as the testimony of the VE, the ALJ found that plaintiff could perform jobs in the national economy, including counter clerk and rental clerk at a storage facility. (A.R. 19-20.) Accordingly, the ALJ concluded that plaintiff has not been disabled within the meaning of the Social Security Act from September 2, 2002, the alleged onset date, through the date of the ALJ's decision. (A.R. 20.)

STANDARD OF REVIEW

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.

DISCUSSION

Plaintiff makes the following claims: (1) the ALJ failed to consider properly the opinion of plaintiff's treating physician Carrie Bacon, M.D. regarding plaintiff's inability to work; (2) the ALJ failed to consider properly the opinion of plaintiff's treating physician Khalib B. Ahmed, M.D.; (3) the ALJ did not provide an accurate and complete assessment of plaintiff's RFC; (4) the ALJ did not conclude properly that plaintiff is ...


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