United States District Court, E.D. California
TIMOTHY E. ZALESNY, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
CRAIG M. KELLISON, Magistrate Judge.
Plaintiff, who is proceeding with retained counsel, brings this action under 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. 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. 16) and defendant's cross-motion for summary judgment (Doc. 20).
I. PROCEDURAL HISTORY
Plaintiff applied for social security benefits on July 19, 2010. In the application, plaintiff claims that disability began on January 1, 2008. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on November 30, 2011, before Administrative Law Judge ("ALJ") Mary M. French. In an April 6, 2012, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:
1. The claimant has the following severe impairment(s): seizure disorder; degenerative disc disease of the lumbar spine; scoliosis; short leg syndrome; degenerative joint disease of the hip, status post hip fracture; right greater trochanteric bursitis; right hamstring tightness; asthma; panic disorder; low average intellect; borderline memory functioning; anxiety disorder; and depressive disorder;
2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;
3. The claimant has the following residual functional capacity: the claimant can perform sedentary work with frequent balancing; the claimant is limited to occasional climbing ramps/stairs, ladders, ropes, or scaffolds; occasional stooping, kneeling, crouching, and crawling; the claimant must avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and hazards such as machinery and heights; he must be allowed to use a cane; he is limited to simple repetitive tasks in a non-public setting; and
4. Considering the claimant's age, education, work experience, residual functional capacity, and vocational expert testimony, there are jobs that exist in significant numbers in the national economy that the claimant can perform.
After the Appeals Council declined review on April 23, 2013, this appeal followed.
II. STANDARD OF REVIEW
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).
In his motion for summary judgment, plaintiff argues that the vocational expert's testimony in this case is insufficient to establish that jobs which plaintiff can perform exist in significant numbers in the national economy. In this regard, the ALJ stated:
If the claimant had the residual functional capacity to perform the full range of sedentary work, a finding of "not disabled" would be directed by Medical-Vocational Rule 201.28. However, the claimant's ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations. To determine the extent to which these limitations erode the unskilled sedentary occupational base, the Administrative Law Judge asked the vocational expert whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity. The vocational expert testified that given all of these factors the individual could be able to perform the requirements of representative occupations such as: office helper..., 8, 700 jobs in the state at the sedentary level, hand packager..., 1, 500 jobs in the state at the sedentary level, and small parts assembler..., 17, 000 jobs in the state at the sedentary level. Pursuant to SSR 00-4p, the undersigned has determined that the vocational expert's testimony is not consistent with the information contained in the Dictionary of Occupational Titles in that these jobs are listed at higher exertional levels in the Dictionary of Occupational Titles. ...