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Martha R. Espinoza v. Michael J. Astrue

January 29, 2013

MARTHA R. ESPINOZA, 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 AND ORDER

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

I. DISPUTED ISSUE

As reflected in the Joint Stipulation, the sole disputed issue raised by Plaintiff as the ground for reversal and/or remand is whether the administrative law judge ("ALJ") properly determined that Plaintiff could perform alternative work. (JS at 5.)

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 cervical and lumbar spine degenerative disc disease; depression; and anxiety. (AR at 53.) The ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform less than the full range of medium work, and specifically can lift and/or carry fifty pounds occasionally and twenty-five pounds frequently; can sit six hours in an eight-hour workday; can stand and walk six hours in an eight-hour workday; is limited to frequent overhead reaching with left upper extremity with no restriction on the right upper extremity; is limited to occasionally climbing ladders, ropes, and scaffolds; due to a low tolerance for stress, is precluded from work with fast-paced production requirements and assembly line work; is limited to work involving no more than casual or non-intense contact with co-workers and the general public; is limited to simple, routine, repetitive tasks; and must avoid concentrated exposure to pulmonary irritants such as gases, dusts, fumes, and odors. (Id. at 55.)

Relying on the testimony of the vocational expert ("VE"), the ALJ determined that an individual with Plaintiff's age, education, work experience, and RFC, would be able to perform the requirements of such occupations as laundry worker (Dictionary of Occupational Titles ("DOT") 361.687-018), linen room attendant (706.687-010), and food service worker (DOT No. 319.677-014). (AR at 63.) Thus, the ALJ determined that Plaintiff has not been under a disability, as defined by the Social Security Act. (Id.)

B. The ALJ Failed to Properly Consider the Vocational Evidence.

Plaintiff contends that the ALJ's determination that she could perform alternative occupations at Step Five of the sequential evaluation process was not supported by substantial evidence because her assessed RFC does not allow for the performance of the identified occupations. (JS at 6.)

Specifically, Plaintiff contends that the RFC finding that she is limited to simple, routine, repetitive tasks, is inconsistent with the identified occupations of linen room attendant and food service worker, which require level 3 reasoning skills. (Id. at 7-8.) She also contends that the RFC finding that she is precluded from fast-paced production work and ...


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