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Joyce R. Moorer v. Michael J. Astrue

December 20, 2011

JOYCE R. MOORER,
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 November 30, 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 December 28, 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 August 23, 2011, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, alternatively, remanding for further administrative proceedings; and the Commissioner requests that his decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

On June 7, 2007, plaintiff filed an application for a period of disability, DIB, and SSI. (Administrative Record ("A.R.") 12.) Plaintiff, who was born on March 19, 1951 (A.R. 17),*fn1 claims to have been disabled since March 15, 2007 (A.R. 12, 16), due to "vision problems, right thumb problem and high blood pressure (per testimony)" (A.R. 14).

Plaintiff's claim was denied initially and upon reconsideration (A.R. 53-57, 62-66); plaintiff then requested a hearing (A.R. 68). On July 28, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Edward C. Graham (the "ALJ"). (A.R. 19-48.) Vocational expert Randi Hetrick also testified. On September 21, 2009, the ALJ denied plaintiff's claim (A.R. 12-18), 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 May 15, 2007, the alleged onset date. (A.R. 16.) The ALJ determined that plaintiff has the following severe impairments: "hypertension, right thumb arthralgia and cataract, right eye." (Id.) He 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. §§ 404.1520(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 medium work, as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), "with no frequent fine manipulation and with avoidance of working at unprotected heights or around dangerous moving machinery." (A.R. 17.) The ALJ concluded that, with this RFC and limitations, plaintiff would be able to perform her past relevant work as a retail sales representative. (Id.) Further, after considering plaintiff's age, education, work experience, and RFC, as well as the testimony of the vocational expert, the ALJ found that plaintiff could perform jobs in the national economy, including laundry laborer, warehouse laborer, cleaner/housekeeper, sales attendant, and outside deliverer. (Id.) Accordingly, the ALJ concluded that plaintiff has not been disabled within the meaning of the Social Security Act from May 15, 2007, the alleged onset date, through the date of the ALJ's decision. (A.R. 17.)

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 or her decision "and may not affirm the ALJ on a ground upon which he [or she] 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 claims that the ALJ did not consider her testimony regarding the use of her right hand properly. (Joint Stipulation ("Joint Stip.") at 4-8, 13-14.) Specifically, plaintiff claims that the ALJ failed to give clear and convincing reasons for rejecting her testimony that she is limited to no ...


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