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Corey Gordon v. Michael J. Astrue

October 16, 2012

COREY GORDON,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on March 22, 2012, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on April 26, 2012. Plaintiff filed a motion for summary judgment on September 11, 2012.*fn1 Defendant filed a cross-motion for summary judgment on October 11, 2012. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed March 23, 2012.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff, a former truck driver and limousine driver, asserts disability since December 30, 2002, based on a combination of alleged impairments (Administrative Record ("A.R.") 59-73, 116-22, 128-40, 142, 175). The Administrative Law Judge ("ALJ") found that Plaintiff suffers from severe impairments, including "degenerative disease of the colon" (A.R. 18). According to the ALJ, Plaintiff retains the residual functional capacity to perform light work that would permit "close proximity to the restroom; and the ability to take 10 to 15 minute breaks every 2 hours" (A.R. 20). The ALJ found that, with these restrictions, Plaintiff cannot perform any of Plaintiff's past relevant work (A.R. 24).

In an attempt to determine whether there exist other jobs Plaintiff can perform, the ALJ posed a hypothetical question to a vocational expert (A.R. 74). The hypothetical question assumed that the worker: [h]as to be near facilities, must be -- let's see, every two hours in connection with the symptoms to be able to take a, what -- five, ten minute break every two hours? That's consistent with 15 minute break, so nothing in addition to that.

(A.R. 74). The vocational expert responded that:

[s]uch a hypothetical individual could perform the work of a routing clerk . . . looking at approximately 71,000 such jobs in existence in the national economy, 3,100 in the regional economy. Information clerk . . . looking at approximately 50,000 such jobs in existence in the national economy, 2,900 in the regional economy.

(A.R. 74-75).

The ALJ relied on the vocational expert's testimony in finding Plaintiff not disabled (A.R. 25-26). The Appeals Council denied review (A.R. 1-3).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 ...


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