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Carolyn Martinez v. Michael J. Astrue

February 22, 2012


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


Plaintiff filed a Complaint on April 11, 2011, seeking review of the denial of plaintiff's application for supplemental security income ("SSI"). On May 2, 2011, 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 December 5, 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 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.


On August 23, 2007, plaintiff filed an application for SSI. (Administrative Record ("A.R.") 9.) Plaintiff, who was born on May 1, 1965 (A.R. 17),*fn1 claims to have been disabled since December 1, 2006 (A.R. 9), due to arthritis, back problems, depression, and vision problems (A.R. 78, 86). Plaintiff has past relevant work experience as a "jogger," material handler, tamale maker, and companion. (A.R. 17.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 9, 78-82, 86-90), plaintiff requested a hearing (A.R. 91). On January 22, 2010, plaintiff, who was represented by counsel, appeared and testified at a video hearing before Administrative Law Judge John R. Price (the "ALJ").*fn2 (A.R. 9, 19-71.) Lay witness Anthony Torres and vocational expert Stephen P. Davis also testified. (Id.) On February 10, 2010, the ALJ denied plaintiff's claim (A.R. 9-18), 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 23, 2007, her application date. (A.R. 11.) The ALJ determined that plaintiff has the following severe impairments: right-eye blindness; bilateral early cataracts; moderate degenerative disc disease of the cervical spine; obesity; major depression; and post-traumatic stress disorder. (Id.) The ALJ also determined that plaintiff does not have an impairment or a combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 416.926). (A.R. 12.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform light work, as defined in 20 C.F.R. § 416.967(b), with the following exceptions: [plaintiff] can lift and carry ten pounds frequently and twenty pounds occasionally, walk and stand for six hours in an eight-hour workday, and sit for six hours in an eight-hour workday. [Plaintiff] should not engage in work that requires good visual acuity due to blindness in the right eye and the associated lack of depth perception, no work around hazards such as dangerous heights and machinery, and she can perform simple, repetitive one to two-step job tasks with no interaction with the general public, occasional interaction with co-workers, and little to no change in the work routine from day to day.

(A.R. 14.)

Based on his RFC assessment, the ALJ determined that plaintiff is unable to perform her past relevant work. (A.R. 17.) However, having considered plaintiff's age, education,*fn3 work experience, and RFC, the ALJ found that jobs exist in the national economy that plaintiff could perform, including table worker and coater, brake linings.*fn4 (A.R. 17-18.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since August 23, 2007, the date her SSI application was filed. (A.R. 18.)


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 did not properly: (1) consider the November 9, 2007 opinion of State agency physician Dr. H. M. Skopec (Joint Stipulation ("Joint Stip.") at 2-5); and (2) assess plaintiff's ability to perform other work in the economy (Id. at 3, 7-9).

I. The Alleged Failure To Consider Properly The November 29, 2007 Opinion Of State Agency Physician H. M. Skopec, M.D. Does Not Warrant Remand.

It is the responsibility of the ALJ to analyze evidence and resolve conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In the hierarchy of physician opinions considered in assessing a social security claim, "[g]enerally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 416.927(d).

In evaluating opinion evidence, an ALJ is required to consider the opinions and findings of State agency medical consultants. 20 C.F.R. § 416.927(f)(2)(I). Further, "[u]nless a treating source's opinion is given controlling weight, the [ALJ] must explain in the decision the weight given to the opinions of a State agency [consultant]." 20 C.F.R. § 416.927(f)(2)(ii); see SSR 96-6p (1996), 1996 SSR LEXIS 3, at *5, 1996 WL 374180, at *2 (stating that an ALJ "may not ignore" the opinions of State agency medical consultants "and must explain the weight given to these opinions in their decision").

In determining a claimant's RFC, an ALJ will consider all the relevant evidence in the record. 20 C.F.R. ยง 416.945(a). In so doing, the ALJ will consider all claimant's medically determinable ...

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