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Ronald Suschank v. Michael J. Astrue

May 22, 2012

RONALD SUSCHANK,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Ronald Suschank seeks judicial review of the Commissioner's denial of his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits under the Social Security Act. For the reasons discussed below, the decision of the Commissioner is affirmed and the action is dismissed with prejudice.

I. Factual and Procedural History

Plaintiff was born on November 10, 1961. (Administrative Record ("AR") at 38.) He has a high school education and has work experience as a sheet metal fabricator and maintenance worker. (AR at 121, 125.) Plaintiff filed an application for DIB and SSI benefits on August 16, 2004, alleging that he had been disabled since July 1, 2002, due to a heart condition, seizures, lung and breathing problems and hernia/testicle surgeries. (AR at 120.) Plaintiff's application was denied initially on March 15, 2005 and upon reconsideration on May 19, 2005. (AR at 43-47, 52-56.)

An administrative hearing was held on October 4, 2006 before Administrative Law Judge ("ALJ") Peggy M. Zirlin. (AR at 345-371.) ALJ Zirlin issued an unfavorable decision on October 24, 2006. (AR at 12-30.) Upon the stipulation of the parties, the matter was remanded to the ALJ on April 25, 2008. (AR at 410-417.) A second administrative hearing was held on July 1, 2009. (AR at 530-540.)

On August 27, 2009, ALJ Zirlin again denied Plaintiff's applications for benefits. (AR at 378-404.) The ALJ found that Plaintiff had not engaged in substantial gainful activity during the relevant time period. (AR at 400.) The ALJ further found that the medical evidence established that Plaintiff suffered from the following severe impairments: status post myocardial infarction with stent placement in 2000, early onset arteriorsclerotic cardiovascular disease, status post bilateral inguinal hernias, recurrent cysts in the testicles with multiple surgical treatment, seizure disorder, obesity, and chronic bronchitis secondary to cigarette smoking. (Id.) However, the ALJ concluded that Plaintiff's impairments did not meet, or were not medically equal to, one of the impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR 17.)

The ALJ concluded that Plaintiff retained the residual functional capacity ("RFC") to perform light/sedentary work as defined in 20 CFR 404.1567(b) and 416.967(b) as follows: "lift and carry less than 5 pounds frequently and occasionally, stand and walk 6/8 hours, sit 6/8 hours, occasionally climb, balance, stoop, kneel, crouch and crawl and no exposure to unprotected heights or hazardous machinery. Given the smoking history and his lung testing, I also find that he should avoid concentrated exposure to fumes, odors, dusts, gasses and poor ventilation." (AR at 400-401.)

The ALJ found that Plaintiff was unable to perform his past relevant work as a sheet metal fabricator and maintenance worker. (AR at 403.) However, the ALJ further found, based on the vocational expert's ("VE") testimony at the first administrative hearing, that there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, such as assembler, reception/information clerk, cashier II and information clerk. (AR at 404.) Accordingly, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act. (Id.)

On February 28, 2011, the Appeals Council denied review (AR at 372-374), and Plaintiff timely commenced this action for judicial review. On May 11, 2012, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues. Plaintiff contends that the ALJ erred at step 5 of the sequential evaluation by finding that Plaintiff could perform the jobs of assembler, reception/information clerk, cashier II and information clerk. (Joint Stip. at 3.) Plaintiff asks the Court to reverse and award benefits, or in the alternative, remand for further administrative proceedings. (Joint Stip. at 19.) The Commissioner requests that the ALJ's decision be affirmed. (Joint Stip. at 20.)

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Social Security Commissioner's decision to deny benefits. The Court must uphold the Social Security Administration's disability determination unless it is not supported by substantial evidence or is based on legal error. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)(citing Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). 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

Plaintiff contends that the ALJ improperly relied upon the VE's testimony that Plaintiff could perform the identified jobs because those jobs, as defined by the Dictionary of Occupational Titles ("DOT"), require lifting a greater amount of weight than the ALJ found Plaintiff capable of lifting in the ALJ's assessment of Plaintiff's RFC. (Joint Stip. at 4.) The ALJ based her conclusion that Plaintiff could perform a significant number of jobs in the economy on the testimony of the VE. (AR at 366-367.)

At the administrative hearing, the ALJ posed the following hypothetical question to the ...


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