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Forrest Larry Hixon v. Michael J. Astrue

June 26, 2012

FORREST LARRY HIXON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Disability Insurance Benefits under Title II of the Social Security Act ("Act") and Supplemental Security Income benefits under Title XVI of the Act.*fn1 In his motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") in this case erred by: (1) giving insufficient weight to the consultative examiner's medical opinion; (2) failing to consider plaintiff's obesity when determining that plaintiff's impairments did not equal a listing at step three; (3) failing to further develop the medical record; (4) rejecting the medical opinions of certain doctors and nurses; (5) issuing a boilerplate credibility finding against plaintiff; and (6) incorrectly assessing and relying on the vocational expert's ("VE") testimony as to jobs plaintiff could perform. (See generally Pl.'s Mot. For Summ. J. and Memo. In Supp. Of Mot. ("Pl. Memo."), Dkt. No. 17.) Plaintiff asks the court to remand this matter to the agency for payment of benefits or, in the alternative, for further proceedings so that these alleged errors may be addressed. The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 19.) Plaintiff filed a reply brief. (Dkt. No. 22.) For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.

I. BACKGROUND*fn2

A. Procedural History

On May 10, 2006, plaintiff protectively filed concurrent applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits that alleged a disability onset date of August 22, 2004. (Admin. Tr. ("AT") 90-97.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 68-71.) The ALJ conducted a hearing regarding plaintiff's claim on October 23, 2008. (AT 19-47.) Plaintiff was represented by a non-attorney representative at the hearing. A vocational expert ("VE") also testified at the hearing.

In a written decision dated November 28, 2008, the ALJ denied plaintiff's application for benefits based on a finding that plaintiff could perform other work in the representative occupations of "parking lot cashier," "mail clerk sorter," and "assembly machine tender," which are jobs that exist in significant numbers in the California economy.*fn3 (AT 18.)

The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1-4.) Plaintiff subsequently filed this action.

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff "severe" impairments: "coronary artery disease (CAD), status post PTCA and stenting times two, morbid obesity, and chronic back pain with radiculopathy." (Id.) At step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in the applicable regulations. (AT 13.)

Prior to reaching step four of the analysis, the ALJ determined plaintiff's residual functional capacity ("RFC") as follows:

[T]he claimant has the residual functional capacity to perform the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b), alternating standing and sitting every two hours. (AT 13.) In assessing plaintiff's RFC, the ALJ addressed plaintiff's testimony and found he was not credible to the extent that his testimony conflicted with the RFC. (AT 14, 16.) At step four, the ALJ found plaintiff was "unable to perform any past relevant work" as an auto parts retail person. (AT 17.) At step five, the ALJ concluded that, considering plaintiff's age, education, work experience, the RFC, and the VE's testimony, plaintiff was not disabled within the meaning of the Act. (Id.) Relying on the VE's testimony, the ALJ determined plaintiff could perform work in the representative occupations of "parking lot cashier," "mail clerk sorter," and "assembly machine tender" and that jobs in those occupations existed in significant numbers in the California economy. (AT 17-18.)

II. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should ...


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