United States District Court, E.D. California
JOSEPH J. SALLES, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
M. KELLISON UNITED STATES MAGISTRATE JUDGE.
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. 18) and defendant's
cross-motion for summary judgment (Doc. 19). 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.
applied for social security benefits with a protective filing
date of July 16, 2012, alleging an amended onset of
disability on November 22, 2006, due to ruptured appendix,
stomach surgery, back injury, neck, manic depressive
(Certified administrative record (“CAR”) 61, 72,
73, 83, 146-50). Plaintiff's claim was denied initially
and upon reconsideration. Plaintiff requested an
administrative hearing, which was held on June 9, 2014,
before Administrative Law Judge (“ALJ”) Daniel G.
Heely. In a July 25, 2014, decision, the ALJ concluded that
plaintiff is not disabled based on the following findings:
1. The claimant has not engaged in substantial gainful
activity since July 16, 2012, the application date (20 CFR
416.971 et seq).
2. The claimant has the following severe impairments:
back/neck impairment, depression, asthma, and obesity (20 CFR
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 light work as defined in 20
CFR 416.967(b) with the following additional limitations:
could sit six hours, stand/walk 6 hours each with normal
breaks; lift and/or carry 20 pounds occasionally, 10 pounds
frequently; could never climb ladders, ropes or scaffolds;
could occasionally climb ramps or stairs; could never work
around hazards like moving dangerous machinery or unprotected
heights; could not operate motor vehicles; could not work
around concentrated fumes, odors, smoke, dusts, other
environmental irritants in the workplace; and is limited to
5. The claimant is unable to perform any past relevant work
(20 CFR 416.965).
6. The claimant was born on October 3, 1965 and was 46 years
old, which is defined as a younger individual age 18-49, on
the date the application was filed (20 CFR 416.964).
7. The claimant has at least a high school education and is
able to communicate in English (20 CFR 416.964).
9. Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled, ” whether or
not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
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
10. The claimant has not been under a disability, as defined
in the Social Security Act, since November 12, 2008, the date
the application was filed (20 CFR 416.920(g)).
(CAR 11-9-25). After the Appeals Council declined review on
September 21, 2015, this appeal followed.
STANDARD OF REVIEW
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).
argues the ALJ erred in two ways: (1) the ALJ erred in not
accepting his treating physician's opinion; and (2) the
ALJ erred in finding plaintiff's testimony and statements