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Toya L. Russell v. Michael J. Astrue

May 18, 2012


The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge


Plaintiff Toya Russell seeks judicial review of the Commissioner's final decision denying her application for Social Security Disability Insurance benefits ("DIB") and for Supplemental Security Income ("SSI") benefits. For the reasons discussed below, the decision of the Commissioner is affirmed and the action is dismissed with prejudice.

I. Facts and Procedural Background

Plaintiff was born on July 23, 1960. (Administrative Record ("AR") at 160.) She completed two years of college and has work experience as a secretary, data entry clerk and receptionist. (AR at 17, 187, 190.) Plaintiff filed her application for DIB on June 8, 2009, and for SSI benefits on June 10, 2009, alleging disability beginning March 27, 2008, due to shoulder and arm pain, asthma and degenerative disc disease. (AR at 130-133, 134-136.) Her application was denied initially on September 14, 2009. (AR at 76-80.) Administrative Law Judge ("ALJ") Robert Eisman held an administrative hearing on November 10, 2010. Plaintiff, represented by an attorney, testified as did a vocational expert ("VE") and a medical expert. (AR at 26-69.)

ALJ Eisman issued an unfavorable decision on December 9, 2010. (AR at 7-24.) The ALJ found that Plaintiff suffered from the following severe impairments: obesity, asthma, cervical spine degenerative disease, and history of bilateral upper extremity shoulder sprain/strain. (AR at 13.) However, these severe impairments did not meet the requirements of a listed impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)

The ALJ found that Plaintiff retained the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. 404.1567(b) as follows: "[S]he can exert up to 20 pounds of force occasionally and/or up to 10 pounds of force frequently and/or a negligible amount of force constantly to move objects. The claimant can stand and walk up to 6 hours and sit up to 6 hour in an 8-hour workday with normal breaks. Due to her obesity, she can perform work that does not require climbing ladders, ropes or scaffolds, and no more than occasional climbing of ramps or stairs, balancing, stooping, kneeling, crouching or crawling. The claimant is right-hand dominant and can frequently lift and reach overhead with her left upper extremity. She can frequently operate foot controls with her right and/or left lower extremities. The claimant can perform work that does not require concentrated exposure to extreme cold, extreme heat, hazardous machinery, unprotected heights, or other high risk, hazardous or unsafe conditions, and that does not require any exposure to environmental irritants or poorly ventilated areas (i.e., asthma precautions)." (AR at 14.)

The ALJ found that Plaintiff could perform her past relevant work as a data entry clerk, secretary and receptionist. (AR at 17.) Therefore, the ALJ concluded that Plaintiff was not disabled under the Social Security Act. (AR at 19.)

The Appeals Council denied review on August 25, 2011 (AR at 1-3), and Plaintiff commenced this action for judicial review. On May 1, 2012, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues, including the following claims of error:

(1) the ALJ did not properly consider the evidence of a mental impairment; (2) the ALJ failed to properly consider the opinion of the treating physician; and (3) the ALJ erred in evaluating Plaintiff's credibility and subjective testimony. (Joint Stip. at 4.) Plaintiff asks the Court to reverse and order an award of benefits, or in the alternative, remand for further administrative proceedings. (Joint Stip. at 31-32.) The Commissioner requests that the ALJ's decision be affirmed. (Joint Stip. at 33.)

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means more than a scintilla, but less than a preponderance; it is evidence that a reasonable person might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. Discussion

A. The ALJ Properly Considered the Evidence Regarding Plaintiff's Alleged Mental Impairment

Plaintiff contends that the ALJ improperly relied on the opinion of the consultative examining psychiatrist, Dr. Minh-Khoi Duong, M.D. and disregarded the report of the reviewing State Agency physician, Dr. C. Dudley, M.D., who posited greater limitations in various mental functions than did Dr. Duong. (Joint Stip. at 4). Dr. Duong diagnosed Plaintiff with major depressive disorder and a global assessment of functioning ("GAF") score of 75. (AR at 13, 247.) Dr. Duong determined that Plaintiff could carry out both simple and complex instructions, relate to others, cope with workplace stress, and deal with changes in a routine work setting. (Id.) Dr. Dudley, on the other hand, opined that Plaintiff had moderate difficulties in maintaining ...

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