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Kenneth G. Crosswhite v. Michael J. Astrue

January 10, 2013

KENNETH G. CROSSWHITE,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Kenneth G. Crosswhite filed this action on December 16, 2011. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on January 11 and 13, 2012. (Dkt. Nos. 8, 9.) On September 21, 2012, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The court has taken the matter under submission without oral argument.

Having reviewed the entire file, the court reverses and remands the decision of the Commissioner for further proceedings consistent with this opinion.

I.

PROCEDURAL BACKGROUND

On October 18, 2007, Crosswhite filed an application for disability insurance benefits, alleging an onset date of November 6, 2005. Administrative Record ("AR") 19, 112. The application was denied initially and upon reconsideration. AR 19, 71-72. Crosswhite requested a hearing before an Administrative Law Judge ("ALJ"). AR 88. On November 4, 2009, the ALJ conducted a hearing at which Crosswhite and a vocational expert testified. AR 36-70. On November 24, 2009, the ALJ issued a decision denying benefits. AR 16-32. On October 20, 2011, the Appeals Council denied the request for review. AR 1-5. This action followed.

II.

STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

"Substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.

III.

DISCUSSION

A. Disability

A person qualifies as disabled and is eligible for benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003).

B. The ALJ's Findings

Crosswhite meets the insured status requirements through December 31, 2010. AR 21. The ALJ found that Crosswhite has the following severe combination of impairments: degenerative disc disease of the lumbosacral spine, osteoarthritis of the cervical spine, tendinosis in the right shoulder with degenerative changes in the acromioclavicular joint and a subchondral cyst, partial tears of the supraspinatus and inferiorspinatus articulating surfaces of the left shoulder with degenerative changes in the acromioclavicular joint with subacromial bursitis, a depressive disorder, and a passive aggressive personality disorder. AR 22.

Crosswhite has the residual functional capacity ("RFC") to lift and carry 20 pounds occasionally and 10 pounds frequently. AR 23. He is limited to occasional postural activity, except he is precluded from climbing ropes, ladders and scaffolds, and must avoid workplace hazards such as dangerous machinery and unprotected heights. Id. He is limited to simple repetitive tasks. Id. He cannot perform his past relevant work but there are jobs, such as packer, assembler and gluer, that exist in significant numbers in the national economy that he can perform. AR 30-32.

C. Medical Evidence

Crosswhite contends that the ALJ did not properly consider the medical evidence. The ALJ noted that no medical source opined that Crosswhite was no longer capable of working. AR 27. However, the ALJ acknowledged that the objective medical evidence from Dr. Anguizola, Dr. De La Llana and Dr. Larsen "would suggest the presence of significant low back impairments warranting greater residual functional capacity limitations." AR 25. The ALJ generally discounted these workers compensation reports because workers compensation reports are "generated in association with the prosecution of adversarial litigation"; Crosswhite selectively failed to offer into evidence a workers compensation report by a chiropractor, Norman Corlew, who concluded he was capable of essentially medium exertion; and there are no "meaningful ...


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