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Abood v. Commissioner of Social Security

United States District Court, E.D. California

March 27, 2014



CRAIG M. KELLISON, Magistrate Judge.

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 15) and defendant's cross-motion for summary judgment (Doc. 18). For the reasons discussed below, the court will deny plaintiff's motion for summary judgment or remand and grant the Commissioner's cross-motion for summary judgment.


Plaintiff applied for social security benefits on September 9, 2009, alleging an onset of disability on January 1, 2009, due to disabilities including major depressive disorder and post traumatic stress disorder. (Certified administrative record ("CAR") 125, 142-49). Plaintiff's claim was denied initially and upon reconsideration. Plaintiff requested an administrative hearing, which was held on January 18, 2011, before Administrative Law Judge ("ALJ") Jean R. Kerins. In a February 4, 2011, decision, the ALJ concluded that plaintiff is not disabled[2] based on the following findings:

1. The claimant has not engaged in substantial gainful activity since September 9, 2009, the application date (20 CFR 416.971 et seq. ).
2. The claimant has the following severe impairments: status post ventral hernia repair, degenerative disc disease of the lumbar spine, obesity, hypothyroidism, major depressive disorder, and posttraumatic stress disorder (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) except: she could occasionally climb ramps and stairs; she could not climb ladders, ropes, and scaffolds; she retains the ability to understand, remember, and carry out simple instructions; she could make judgments on simple work-related decisions; she could interact appropriately with supervisors and coworkers; she could occasionally interact appropriately with the public; she could respond appropriately to usual work situations and changes in a routine work setting.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on July 1, 1958 and was 51 years old, which is defined as an individual closely approaching advanced age, on the date the application was filed (20 CFR 416.963). 7. The claimant has limited education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
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 (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since September 9, 2009, the date the application was filed (20 CFR 416.920(g)).

(CAR 10-20). After the Appeals Council declined review on May 31, 2012, this appeal followed.


The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater , 94 F.3d 520, 521 (9th Cir. 1996). It is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler , 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler , 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen , 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen , 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart , 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen , 856 F.2d 1335, 1338 (9th Cir. 1988).


Plaintiff argues the ALJ erred in three ways: (1) the ALJ failed to properly evaluate the consultative examiner's opinion; (2) the ALJ improperly rejected her treating physicians' opinions; and (3) the ALJ improperly discredited plaintiff's testimony regarding her subjective complaints, as well as her witness's statements.


Plaintiff's first challenge is to the ALJ'S evaluation of the mental health consultative examiner's (CE) opinion. Dr. Renfro evaluated plaintiff on May 6, 2009. Dr. Renfro diagnosed plaintiff with major depressive disorder and post traumatic stress disorder (PTSD). His functional assessment/medical source statement as to plaintiff was as follows:

1. She is able to understand, remember, and carry out simple one or two step-job instructions.
2. She is unable to do detailed and complex instructions.
3. She is impaired in her ability to relate and interact with co-workers and the public. (Language barrier/acculturation issues.)
4. She is impaired in her ability to maintain persistence and pace. (Short-term memory, concentration, 6th grade education, no formal work history.)
5. She is not impaired in her ability to associate with day-to-day work activity, including attendance and safety. ...

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