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Thomas Mcclung, Jr v. Michael J. Astrue

January 3, 2013

THOMAS MCCLUNG, JR., PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Income Benefits ("DIB") under Title II of the Social Security Act ("Act"). For the reasons discussed below, the court will grant plaintiff's motion for summary judgment, deny the Commissioner's cross-motion for summary judgment, and remand this matter under sentence four of 42 U.S.C. § 405(g).

BACKGROUND

Plaintiff, who was born in 1965, applied for DIB on January 24, 2008, alleging disability beginning April 17, 2003. Administrative Transcript ("AT") 37, 154; Dkt. 13-1. Plaintiff alleges that he is unable to work on account of his mental impairment, peripheral neuropathy, heart condition, diabetes and high blood pressure. AT 56-57. In a decision dated March 22, 2010, an Administrative Law Judge ("ALJ") determined that plaintiff was not disabled.*fn1 Tr. 17-25. The ALJ made the following findings (citations to 20 C.F.R. omitted):

1. The claimant has not engaged in substantial gainful activity since January 24, 2008, the application date.

2. The claimant has the following severe combination of impairments: status post-pacemaker implantation, diabetes with peripheral neuropathy, hypertension, psychotic disorder, and depressive disorder.

3. The claimant does not have a combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR Part 416.967(b) except that he should avoid concentrated interaction, more than 60 percent of the workday, with the public, co-workers or supervisors.

5. The claimant has no past relevant work.

6. The claimant was born on June 25, 1965 and was 42 years old, which is defined as a younger individual 18-49, on the date the application was filed.

7. The claimant has a limited education and is able to communicate in English.

8. Transferability of job skills is not an issue in this case because the claimant does not have past relevant work.

9. 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.

10. The claimant has not been under a disability, as defined in the Social Security Act, since January 24, 2008, the date the application was filed.

AT 37- 44.

ISSUES PRESENTED

Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) failing to credit the portions of examining Drs. Kalman's Sharma's and Daigle's opinions that indicated plaintiff was more limited than determined by the ALJ; and (2) failing to call a vocational expert despite the non-exertional limitations found by the ALJ. Dkt. 13-1. LEGAL STANDARDS

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 ...


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