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Steve Moreno v. Michael J. Astrue

June 14, 2012

STEVE MORENO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER PROCEEDINGS

On November 18, 2011, Steve Moreno ("Plaintiff or Claimant") filed a complaint seeking review of the decision by the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for Social Security Disability Insurance benefits. The Commissioner filed an Answer on February 21, 2012. On May 24, 2012, the parties filed a Joint Stipulation ("JS"). The matter is now ready for decision.

Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision should be affirmed and the case dismissed with prejudice.

BACKGROUND

Plaintiff is a 40 year old male who applied for Social Security Disability Insurance benefits on March 31, 2007, alleging disability beginning September 1, 2006. (AR 14.) Plaintiff has not engaged in substantial gainful activity since that date. (AR 17.)

On July 16, 2009, Administrative Law Judge ("ALJ") Jesse J. Pease issued an unfavorable decision denying benefits. (AR 14.) In this prior decision, the ALJ made the following findings:

(1) the claimant met the insured status requirements of the Social Security Act through December 31, 2001; (2) the claimant had not engaged in substantial gainful activity; (3) the claimant had a severe impairment consisting of status post gunshot wound to the right hip with hip fracture and subsequent surgery; (4) the claimant did not have an impairment or combination of impairments that met or medically equaled a listed impairment; (5) the claimant had the residual functional capacity ("RFC") to perform a narrow range of light exertion; (6) the claimant's RFC precluded the performance of his past relevant work; (7) the claimant was a younger person with a high school education and no transferable work skills; (8) the claimant's vocational factors and RFC did not preclude the performance of a significant number of jobs in the regional and national economy; and (9) the claimant was not disabled. (AR 14.)

Through his attorney, Plaintiff appealed the unfavorable decision and on June 5, 2010, the Appeals Council granted the request for review, vacated the hearing decision, and remanded the case for further administrative proceedings. (AR 14.) In its remand order, the Appeals Council directed the ALJ to do the following:

* Further consider the claimant's RFC in accordance with Social Security Rulings, 83-14, 83-15 and 96-8p.

* Obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on Claimant's occupational base (Social Security Rulings 83-12 and 85-15). The hypothetical questions should reflect the specific capacity/limitations established by the records as a whole. Ask the vocational expert to identify examples of such appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566 and 416.966). Further, before relying on the vocational expert evidence, identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles ("DOT") and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p). (AR 14-15.)

Subsequently, a hearing was held on November 1, 2010, in San Bernardino, California before the same ALJ. (AR 15.) Plaintiff appeared and testified at the hearing and was represented by counsel. (AR 15.) Medical expert Joseph E. Jensen and vocational expert ("VE") Sandra M. Fioretti also appeared and testified at the hearing. (AR 15.)

The ALJ issued an unfavorable decision on November 12, 2010. (AR 14-22.) The prior decision was incorporated by reference, as supplemented in this new decision. (AR 15.) The Appeals Council denied review on September 13, 2011. (AR 1-4.)

DISPUTED ISSUES

As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as grounds for reversal and remand:

1. Whether the ALJ properly considered Plaintiff's testimony and made proper credibility findings.

2. Whether the ALJ properly considered Plaintiff's treating physician's opinion and properly developed the record.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and free of legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991) (ALJ's disability determination must be supported by substantial evidence and based on the proper legal standards).

Substantial evidence means "'more than a mere scintilla,' but less than a preponderance." Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a ...


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