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Mark Mcclary v. Michael J. Astrue

July 16, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"). For the reasons that follow, plaintiff's Motion for Summary Judgment is granted in part, the Commissioner's Motion for Summary Judgment is denied, and this matter is remanded to the ALJ for further findings as directed in this opinion. The Clerk is directed to enter judgment for plaintiff.


Plaintiff, born March 16, 1969, applied for disability benefits on May 12, 2008. (Tr. at 124, 132.) Plaintiff alleged he was unable to work since August 8, 2007, due to a right leg injury, bipolar disorder, and depression. (Tr. at 148, 182.) In a decision dated February 19, 2010, ALJ William C. Thompson, Jr. determined that plaintiff was not disabled. The ALJ made the following findings:*fn1

1. Based on earnings through 2006, the claimant met the insured status requirements of the Social Security Act only through December 31, 2008.

2. The claimant has not engaged in substantial gainful activity since August 8, 2007, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following medically determinable impairments: obesity (see, e.g., Exhibit 2E, P. 1), status post healed fracture to the lower right leg caused by gunshot wound (Exhibit 1F, pp. 2, 30), a bipolar disorder (Exhibit 11F, p. 80), and a history of alcohol abuse in reported recent remission (see, e.g. Exhibit 15F, p. 4) (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to lift and carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk for two out of eight hours, and sit for six hours in an eight-hour workday. He cannot climb ladders, ropes, or scaffolds. He cannot work at heights. He can perform simple work. He can tolerate only restricted contact with co-workers and the public, with "restricted" defined as inability to be part of a team or perform cooperative work.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on March 16, 1969. On August 8, 2007 (the alleged onset date), he was 38 years old, which is defined as a "younger individual" (20 CFR 404.1563 and 416.963).

8. The claimant has a "limited" education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from August 8, 2007 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)). (Tr. at 11-25.)


Plaintiff has raised the following issues: A. Whether the ALJ Failed to Properly Credit the Treating and Examining Physicians' Opinions, and Ignored Limitations of One Physician While Purporting to Accept the Opinion; and B. Whether the ALJ Failed to Credit the Vocational Expert's Testimony in Response to a Hypothetical Which Accurately Reflected Plaintiff's Functional Limitations.


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. ยง 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. ...

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