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Robert V. Bustos v. Michael J. Astrue

October 19, 2012


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


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("Act").*fn1 In his motion for summary judgment, plaintiff principally contends that the Commissioner erred by finding that plaintiff was not disabled from September 6, 2005, through the date of the final administrative decision. (Dkt. No. 22.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 23.) For the reasons that follow, the court denies plaintiff's motion for summary judgment, grants the Commissioner's cross-motion for summary judgment, and enters judgment for the Commissioner.


Plaintiff was born on August 27, 1956, has at least the equivalent of a high school education, and previously worked as a hand packager (among other jobs).*fn2 (Administrative Transcript ("AT") 30, 51-54, 62-63, 136.) On August 4, 2008, plaintiff applied for DIB and SSI, alleging that he was unable to work as of September 6, 2005, primarily due to depression, anxiety, nervousness, and panic attacks. (AT 10, 34, 62-63, 136, 170, 242.) On January 16, 2009, the Commissioner determined that plaintiff was not disabled. (AT 10, 69-73, 74-78.) Upon plaintiff's request for reconsideration, the determination was affirmed on April 28, 2009. (AT 10, 79-83, 84-88.) Subsequently, plaintiff requested a hearing before an administrative law judge ("ALJ"), which took place on June 24, 2010. (AT 10, 22, 89.)

In a decision dated July 13, 2010, the ALJ determined that plaintiff had not been under a disability, as defined in the Act, from September 6, 2005, through the date of that decision. (AT 17.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on May 26, 2011. (AT 1-6.) Thereafter, plaintiff filed this action in federal district court on July 25, 2011, to obtain judicial review of the Commissioner's final decision. (Dkt. No. 1.)


Plaintiff has raised the following issues: (1) whether the ALJ improperly evaluated the mental health opinion evidence, in particular the opinions of state agency psychiatrist Dr. Lee and consultative examining psychiatrist Dr. Patrick Wong; and (2) whether the ALJ failed to properly credit certain portions of the vocational expert's testimony.


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 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. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).


A. Summary of the ALJ's Findings

The ALJ evaluated plaintiff's entitlement to DIB and SSI pursuant to the Commissioner's standard five-step analytical framework.*fn3 As an initial matter, the ALJ found that plaintiff remained insured for purposes of DIB through March 31, 2008. (AT 10.) At the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since September 6, 2005, plaintiff's alleged disability onset date. (AT 12.) At step two, the ALJ determined that plaintiff had the following severe impairments: depression and anxiety. (Id.) However, at step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)

Before proceeding to step four, the ALJ assessed plaintiff's RFC as follows:

[T]he undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: The claimant is limited to simple repetitive tasks with limited peer, public, and supervisor interaction. (AT 13.)

At step four, the ALJ found that plaintiff was capable of performing his past relevant work as a hand packager. (AT 16.) The ALJ relied on the testimony of a vocational expert ("VE"), who testified that the Dictionary of Occupational Titles ("DOT") classified that job as requiring medium level exertion with a specific vocational preparation ("SVP") level of 2, which is considered to be unskilled work. (AT 16-17, 54.) The VE further testified that, given plaintiff's assessed RFC, plaintiff could perform his past relevant work as it is generally performed in the national economy. (AT 16-17, 56.) Accordingly, the ...

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