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Daniel Ray Mcnally v. Michael J. Astrue

January 31, 2013


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on October 25, 2011, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for a period of disability and disability insurance benefits ("DIB"). On November 14, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on June 18, 2012, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, alternatively, remanding for further administrative proceedings; and the Commissioner requests that his decision be affirmed or, alternatively, remanded for further administrative proceedings.


On July 28, 2009, plaintiff filed an application for a period of disability and DIB, alleging an inability to work since September 1, 2005. (Administrative Record ("A.R.") 13, 117-21.) Plaintiff, who was born on December 24, 1950 (A.R. 117), claims to have been disabled since*fn1 September 1, 2005 (A.R. 13, 117) due to: alcohol abuse; high blood pressure; depression; and treated tonsillar carcinoma, which has resulted in dry mouth, difficulties speaking and swallowing, night sweats, shaky hands, and limitations in his ability to crawl and lift.*fn2 (A.R. 15, 28-32, 42-45, 161, 291, 256; Joint Stip. 7-11.) Plaintiff has past work experience ("PRW") as an "industrial maintenance mechanic." (A.R. 18, 162.)

After the Commissioner denied plaintiff's application initially and upon reconsideration (A.R. 57-60, 61-65), plaintiff requested a hearing (A.R. 66.) On October 12, 2010, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Sharilyn Hopson (the "ALJ"). (A.R. 24-54.) Vocational expert Roxane Minkus (the "VE") and medical expert Samuel Landau (the "ME"), also testified. (Id.) On November 3, 2010, the ALJ denied plaintiff's claim (A.R. 13-23), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-4). That decision is now at issue in this action.


The ALJ found that plaintiff met the insured status requirements of the Social Security Act through December 31, 2014, and that he had not engaged in substantial gainful activity "at least through the end of 2009." (A.R. 15.) The ALJ determined that plaintiff has the severe impairments of: treated tonsillar carcinoma without recurrence; and alcohol abuse in reported, but questionable, early remission. (Id.) The ALJ further determined that "[plaintiff]'s asserted high blood pressure, dry mouth, and depression do not result in any work-related limitations and are, therefore, non-severe impairments." (Id.) The ALJ concluded that these impairments did not meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the Listing of Impairments. (Id.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform "less than the full range of medium work as defined in 20 C.F.R. [§] 404.1567(c)." (A.R. 16.) Specifically, plaintiff can:

lift and/or carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk 6 hours in an 8-hour workday; and sit 6 hours in an 8-hour workday. He can climb stairs but he cannot climb ladders, work at heights, or balance. He cannot operate motorized equipment or vehicles or work around unprotected machinery. His work environment should be air-conditioned for temperature control. He should have no contact with the public either by telephone or in person because of his difficulty speaking.

(A.R. 16.)

The ALJ found that plaintiff was unable to perform his PRW as an industrial maintenance mechanic. (A.R. 18.) However, based upon plaintiff's age, education, work experience, and RFC, the ALJ found that plaintiff acquired work skills from his PRW that are transferable to other occupations in which jobs exist in the national economy that plaintiff could perform, such as "machine operator." (A.R. 19.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since September 1, 2005, the alleged onset date of his disability. (Id.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving ...

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