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Cheryle Ann Montgomery v. Michael J. Astrue

October 10, 2012

CHERYLE ANN MONTGOMERY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge

MEMORANDUM OPINION; ORDER

The Court now rules as follows with respect to the disputed issues listed in *fn1 the Joint Stipulation ("JS").*fn2

I. DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff as the grounds for reversal and/or remand are as follows:

(1) Whether the Administrative Law Judge ("ALJ") properly determined Plaintiff's residual functional capacity in light of his (a) determination of Plaintiff's credibility, (b) rejection of the opinions of Plaintiff's treating physicians, and (c) consideration of the consultative examiner's opinion; and

(2) Whether the ALJ properly found that Plaintiff was capable of performing alternative work. (JS at 4-13, 31-39.)

II. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

III. DISCUSSION

A. The ALJ's Findings.

The ALJ found that Plaintiff has the severe impairments of status post thoracotomy, chronic obstructive pulmonary disease, emphysema, depressive disorder, and history of polysubstance abuse. (Administrative Record ("AR") at 15.) The ALJ found Plaintiff had the residual functional capacity ("RFC") to perform a limited range of light work with the following limitations: Plaintiff is able to lift twenty pounds occasionally and ten pounds frequently; sit and stand for six hours in an eight-hour day; occasionally climb; be exposed to a minimal amount of pulmonary irritants; and perform only simple, routine tasks. (Id. at 18.) Relying on the testimony of a vocational expert ("VE"), the ALJ concluded that Plaintiff was not capable of performing her past relevant work as a certified nurse aid but could perform alternative work as ticket taker and small products assembler. (Id. at 19-20.)

B. The ALJ's Consideration of Plaintiff's Credibility.

Plaintiff argues that the ALJ's RFC assessment was flawed because it was the result of underlying errors. First, Plaintiff contends that the ALJ improperly rejected her subjective complaints of impairment. (JS at 4-7.)

In his decision, the ALJ rejected Plaintiff's credibility as follows:

After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limited effects of these symptoms are not credible to the ...


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