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Salles v. Commissioner of Social Security

United States District Court, E.D. California

March 30, 2017

JOSEPH J. SALLES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER

          CRAIG M. KELLISON UNITED STATES 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. 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.

         I. PROCEDURAL HISTORY[1]

         Plaintiff 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[2] 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 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 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 unskilled work.
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 416.969(a)).
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.

         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).

         III. DISCUSSION

         Plaintiff 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 not credible.

         A. ...


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