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Rock v. Colvin

United States District Court, Ninth Circuit

July 1, 2013

THOMAS ROCK, Plaintiff,
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.


MARGARET A. NAGLE, Magistrate Judge.

Plaintiff filed a Complaint on March 23, 2012, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for supplemental security income benefits ("SSI"). On April 13, 2012, the parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on December 21, 2012, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding for further administrative proceedings or, alternatively, for the payment of benefits; and the Commissioner requests that her decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument


On November 27, 2007, plaintiff filed an application for SSI. (Administrative Record ("A.R.") 9.) Plaintiff, who was born on January 16, 1960, [2] claims to have been disabled since May 1, 1993 ( id. ), due to: a mental disorder; asthma; carpal tunnel syndrome; and a right shoulder injury (A.R. 48). Plaintiff has past relevant work experience as a construction worker.[3] (A.R. 14.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 9, 48-52, 55-59), plaintiff requested a hearing (A.R. 9, 61-63). On August 18, 2009, plaintiff, who was represented by an attorney, appeared and testified at a hearing before Administrative Law Judge Jay E. Levine (the "ALJ"). (A.R. 9, 19-45.) Vocational expert Sandra M. Fioretti also testified. ( Id. ) On March 25, 2010, the ALJ denied plaintiff's claim (A.R. 9-15), 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 has not engaged in substantial gainful activity since November 27, 2007, the application date. (A.R. 11.) The ALJ determined that plaintiff has the severe impairments of "chronic dislocated right shoulder and mood disorder." ( Id. ) The ALJ concluded, however, that plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). ( Id. )

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform less than the full range of light work as defined in 20 C.F.R. § 416.967(b). (A.R. 12.) Specifically, the ALJ found that:

[plaintiff] can lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk 6 hours in an 8-hour workday; no pushing/pulling with the left upper extremity; no work above shoulder level with right upper extremity and no power gripping with the right hand. [Plaintiff] can do no climbing or crawling but he can occasionally balance, stoop, kneel, and crouch. He cannot work at heights or around dangerous machinery. He cannot perform work where there are production quotas such as on a conveyor belt or piece work. He should work with things rather than with people. He should perform work which requires little contact with members of the public or which does not involve intense interactions with coworkers or supervisors.

( Id. )

Based upon his RFC assessment for plaintiff and after having considered plaintiff's age, education, [4] work experience, and the testimony of the vocational expert, the ALJ found "there are jobs that exist in significant numbers in the national economy that [plaintiff] can perform." (A.R. 14.) In so finding, the ALJ specifically noted that, because plaintiff's ability to perform the full range of light work is impeded by additional limitations, the testimony of a vocational expert was necessary to determine the extent to which plaintiff's limitations eroded the occupational base for this level of work. (A.R. 14-15.) After eroding the job numbers by 75% based on plaintiff's RFC limitations, the vocational expert testified that plaintiff would be able to perform the job of "small products assembly I." (A.R. 15.) The vocational expert further testified that plaintiff would be able to perform the jobs of optical assembly and assembler of buttons and notions notwithstanding his RFC limitations. ( Id. ) Pursuant to SSR 00-04p, the ALJ confirmed that the vocational expert's testimony was consistent with the Dictionary of Occupational Titles ("DOT").[5] Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since November 27, 2007, the application date. ( 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 in the record as a whole. 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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