Kevin M Smith v. Michael J Astrue, No. 5:2009cv02014 - Document 16 (C.D. Cal. 2010)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: Pursuant to sentence four of 42 U.S.C. § 405(g),4 IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (dhl)

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Kevin M Smith v. Michael J Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KEVIN M. SMITH, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 09-2014 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Plaintiff Kevin M. Smith ( Plaintiff ) brings this action seeking 22 to reverse and remand the decision of the Commissioner of the Social 23 Security Administration (the Commissioner or the Agency ) denying his 24 application for Supplemental Security Income ( SSI ) benefits. 25 parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction 26 of the undersigned United States Magistrate Judge. 27 stated below, the decision of the Commissioner is AFFIRMED. 28 \\ The For the reasons Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 On March 27, 2007, Plaintiff filed an application for SSI benefits, 5 alleging disability beginning on December 1, 2006. (AR 115). Plaintiff 6 alleged disability on the basis of knee pain, diabetes, blindness in his 7 left eye, hypertension, seizures, Hepatitis C, and Depressive disorder 8 with psychotic features. (Id.). 9 10 The Agency denied Plaintiff s claim for benefits initially on March 11 3, 2007, and upon reconsideration. (AR 46-52, 55-59). Plaintiff 12 subsequently requested and was granted a hearing before Administrative 13 Law Judge ( ALJ ) Lowell Fortune on March 11, 2009. 14 At the hearing, Plaintiff appeared with counsel and testified, as did 15 medical expert Dr. Michael Kania and vocational expert ( VE ) David A. 16 Rinehart. (AR 63, 71, 74). (AR 24). 17 18 On July 27, 2009, the ALJ issued a decision denying benefits. 19 9-20). 20 Council. 21 review 22 Commissioner. 23 the present action. 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ (AR Plaintiff sought review of this decision before the Appeals (AR 5). and the On September 23, 2009, the Appeals Council denied ALJ s decision (AR 1-3, 5). became the final decision of the On October 23, 2009, Plaintiff commenced 2 1 III. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate 5 a medically determinable physical or mental impairment that prevents him 6 from engaging in substantial gainful activity1 and that is expected to 7 result in death or to last for a continuous period of at least twelve 8 months. 9 42 U.S.C. § 423(d)(1)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 10 incapable of performing the work he previously performed and incapable 11 of performing any other substantial gainful employment that exists in 12 the national economy. 13 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 14 15 16 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 404.1520. The steps are: 17 18 (1) Is the claimant presently engaged in substantial gainful 19 activity? 20 If not, proceed to step two. 21 (2) Is the If so, the claimant is found not disabled. claimant s impairment 22 claimant is found not disabled. 23 severe? If not, the three. 24 (3) 25 If so, proceed to step Does the claimant s impairment meet or equal one of a list of specific impairments described in 20 C.F.R. Part 26 27 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. § 404.1510. 3 1 404, Subpart P, Appendix 1? 2 found disabled. 3 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 4 so, the claimant is found not disabled. 5 If to step five. 6 (5) If not, proceed Is the claimant able to do any other work? 7 claimant is found disabled. 8 If not, the If so, the claimant is found not disabled. 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 11 949, 12 404.1520(a)(4). 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. § 13 14 The claimant has the burden of proof at steps one through four, and 15 the Commissioner has the burden of proof at step five. 16 F.3d 17 affirmative duty to assist the claimant in developing the record at 18 every step of the inquiry. 19 meets his burden of establishing an inability to perform past work, the 20 Commissioner must show that the claimant can perform some other work 21 that exists in significant numbers in the national economy, taking 22 into 23 education, and work experience. 24 Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520(g). The Commissioner may 25 do so by the testimony of a vocational expert or by reference to the at 953-54 account (citing the Tackett). Additionally, Id. at 954. claimant s Bustamante, 262 the ALJ has an If, at step four, the claimant residual functional capacity,2 age, Tackett, 180 F.3d at 1098, 1100; 26 27 2 Residual functional capacity is the most [one] can still do despite [his] limitations and represents an assessment based on all 28 the relevant evidence. 20 C.F.R. § 404.1545(a). 4 1 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 2 P, Appendix 2 (commonly known as the Grids ). 3 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). 4 both exertional (strength-related) and nonexertional limitations, the 5 Grids are inapplicable, and the ALJ must take the testimony of a 6 vocational expert. 7 (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). Osenbrock v. Apfel, 240 When a claimant has Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) 8 9 IV. 10 THE ALJ S DECISION 11 12 At the first step of the sequential evaluation process, the ALJ 13 observed that Plaintiff had not engaged in substantial gainful activity 14 since the alleged onset date of his disability. (AR 11). Next, the ALJ 15 found that Plaintiff had the following severe impairments: a seizure 16 disorder, 17 polysubstance 18 disorder, and antisocial personality traits. a right abuse knee disorder, and dependence, hepatitis depressive C, morbid obesity, disorder, anxiety (Id.). 19 20 At the third step, the ALJ found that Plaintiff s impairments, 21 including the substance use disorders, met sections 12.04, 12.06, and 22 12.09 of the Listing of Impairments set forth in 20 C.F.R. Part 404, 23 Subpart P, Appendix 1. 24 satisfied because Plaintiff has depressive disorder, anxiety disorder, 25 antisocial personality traits, and substance abuse. 26 paragraph 27 impairments, including substance abuse, cause marked limitations in two 28 functional areas; social functioning and concentration, persistence, and B criteria (AR 12). were The paragraph A criteria were satisfied 5 because (Id.). Plaintiff s The mental 1 pace; and repeated episodes of decompensation. 2 ALJ 3 material to his disability, (id.), and that if Plaintiff stopped his 4 substance using these substances, his remaining limitations would be 5 severe, but would not meet or equal any listed impairment in 20 C.F.R. 6 Part 404, Subpart P, Appendix 1. determined that Plaintiff s abuse of (AR 13). heroin and However, the cocaine was (AR 13-14). 7 8 9 In the fourth step of his analysis, the ALJ weighed the medical evidence to determine Plaintiff s RFC. (AR 15-19). The ALJ concluded 10 that Plaintiff was capable of performing medium work 3 with several 11 limitations. 12 climb ramps and stairs but not ladders, ropes, or scaffolds; balance, 13 bend, stoop, crouch, and kneel; and push and pull foot controls with the 14 right leg. 15 avoid exposure to hazards such as unprotected heights, fast-moving 16 machinery, and pools of water; should not perform any work requiring 17 binocular vision or depth perception; and not perform any work involving 18 safety operations or responsibility for the safety of others. (AR 15). (Id.). The ALJ found Plaintiff occasionally able to Additionally, the ALJ determined Plaintiff should (Id.). 19 20 In analyzing Plaintiff s RFC, the ALJ considered Plaintiff s 21 subjective allegations, but did not find them fully credible, as 22 Plaintiff had a history of substance abuse and was a recidivist felon. 23 (AR 24 incarcerated on four separate occasions for drug possession. 25 161). 16-17). Plaintiff Furthermore, had been Plaintiff was arrested about repeatedly 30 times and (AR 16, inconsistent about 26 27 3 The Agency s formulation of medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of 28 objects weighing up to 25 pounds. 20 C.F.R. § 416.967(c). 6 1 reporting his drug use. 2 had been sober for seventeen months. 3 earlier, on March 31, 2008, Plaintiff reported that he was currently 4 using heroin and cocaine on the weekends. 5 claimed that he was clean except for 2 times, in December 2008/January 6 2009 and May/June 2007. 7 did not support this claim, as evidence showed that Plaintiff was also 8 using drugs in July, August, and September 2008, only a few months 9 before Plaintiff s March 2009 hearing. 10 382). 11 prior to the hearing. On July 22, 2008, Plaintiff reported that he (AR 16). (AR 477). However, four months (AR 433). Plaintiff further The ALJ pointed out that the record (Id.; AR 366, 352, 374, 377, The ALJ noted that Plaintiff admitted using heroin four months (AR 15). 12 13 The ALJ rejected the need for greater restrictions recommended by 14 Plaintiff s treating physician, Dr. Gillian Friedman, because the 15 doctor 16 observations to support her conclusions as to [Plaintiff s] residual 17 functional capacity. 18 severe arthritis, but those film results are not part of the record. 19 In fact, none of Dr. Friedman s files are part of the record. (AR 18). failed to cite any medical testing results or objective The doctor mentions past X-ray imaging showing 20 21 In the fifth step, the ALJ determined, based on testimony by the 22 VE, that Plaintiff was able to perform his past work as a warehouse 23 laborer. (AR 19). According to the ALJ, the work does not require the 24 performance 25 functional capacity Plaintiff would have if he stopped his substance 26 abuse. 27 disabled if he stopped the substance use, he found Plaintiff was not of (Id.). work-related activities precluded by the residual Because the ALJ determined that Plaintiff would not be 28 7 1 disabled within the meaning of the Social Security Act at any time since 2 his application. (Id.). 3 4 V. 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. § 405(g), a district court may review the 8 Commissioner s decision to deny benefits. The court may set aside the 9 Commissioner s decision when the ALJ s findings are based on legal error 10 or are not supported by substantial evidence in the record as a whole. 11 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 12 Tackett, 180 F.3d at 1097); Smolen v. 13 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Chater, 80 F.3d 1273, 1279 (9th 14 15 Substantial evidence is more than a scintilla, but less than a 16 preponderance. 17 112 F.3d 1064, 1066 (9th Cir. 1997)). 18 a reasonable person might accept as adequate to support a conclusion. 19 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 20 determine whether substantial evidence supports a finding, the court 21 must consider the record as a whole, weighing both evidence that 22 supports 23 conclusion. 24 F.3d 953, 956 (9th Cir. 1993)). 25 either affirming or reversing that conclusion, the court may not 26 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 27 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). and Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, evidence that It is relevant evidence which detracts from the To [Commissioner s] Aukland, 257 F.3d at 1035 (citing Penny v. Sullivan, 2 If the evidence can reasonably support 28 8 1 VI. 2 DISCUSSION 3 4 Plaintiff claims that the ALJ s decision should be reversed for 5 four reasons. (See Memorandum in Support of Plaintiff s Complaint 6 ( Complaint Memo. ) at 2, 4, 7, 8). 7 ALJ failed to properly develop the record, as despite his finding that 8 none of Dr. Friedman s files are part of the record, the ALJ did not 9 contact Dr. Friedman to attempt to acquire these records. (Id. at 2; AR 10 18). Second, Plaintiff contends that remand is required because the ALJ 11 failed to properly consider the opinion of Dr. Friedman, Plaintiff s 12 treating physician. (Id. at 4). Third, Plaintiff contends that the ALJ 13 failed to properly assess Plaintiff s RFC. 14 Plaintiff contends that the ALJ erred by finding Plaintiff capable of 15 performing his past relevant work. 16 discussed 17 contentions. below, the Court First, Plaintiff contends that the (Id. at 7). (Id. at 8). disagrees with each Finally, For the reasons of Plaintiff s 18 19 20 A. The ALJ s Rejection Of The Treating Physician s Opinion Is Supported By Substantial Evidence In The Record 21 22 Plaintiff s first and second claims are related. Plaintiff s first 23 claim, that the ALJ failed to develop the record by not attempting to 24 obtain Dr. Friedman s files, and Plaintiff s second claim, that the ALJ 25 failed to properly consider Dr. Friedman s opinion, both hinge on the 26 ALJ s erroneous statement that none of Dr. Friedman s files are part 27 of the record. 28 that this statement was erroneous, but finds that it was harmless error. (See Complaint Memo. at 3, 4; AR 18). 9 The Court agrees 1 Although a treating physician s opinion is entitled to great 2 deference, it is not necessarily conclusive as to either the physical 3 condition or the ultimate issue of disability. Lester v. Chater, 81 4 F.3d 821, 830 (9th. Cir. 1995); Morgan v. Comm r of Soc. Sec. Admin., 5 169 F.3d 595, 600 (9th Cir. 1999). 6 is contradicted by another doctor, the ALJ may reject this opinion after 7 providing 8 evidence in the record. 9 properly supported, the opinions of physicians other than treating 10 physicians, such as examining physicians and nonexamining medical 11 experts, may constitute substantial evidence upon which an ALJ may rely. 12 See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 13 (consultative examiner s opinion on its own constituted substantial 14 evidence, because it rested on independent examination of claimant). 15 When 16 determine credibility and resolve the conflict. 17 981 F.2d 1016, 1019 (9th Cir. 1992). specific, there is legitimate If the treating physician s opinion reasons, supported Lester, 81 F.3d at 830. conflicting medical evidence, the by substantial When they are Secretary must Matney v. Sullivan, 18 19 Here, Plaintiff takes issue with the ALJ s statement that none of 20 Dr. Friedman s files are part of the record. 21 this statement was erroneous because Dr. Friedman s records were 22 included in the transcript and reviewed by the ALJ. 23 Support of Defendant s Answer ( Defendant s Memo.) at 3; see also AR 24 340-344, 347, 348, 386 (Dr. Friedman s records)). 25 comment by the ALJ was an inadvertent misstatement, because the ALJ did, 26 in fact, look at Dr. Friedman s records and addressed them elsewhere in 27 his decision. (See ALJ Decision at 18-19). 28 10 Both parties agree that (Memorandum in It appears that this This error was therefore 1 harmless. Carmickle v. Commissioner of the 2 Social Security Administration, 533 F.3d 1155, 1162 (9th Cir. 2008). 3 4 The ALJ gave specific and legitimate reasons to discount Dr. 5 Friedman s decision. The ALJ observed that Dr. Friedman failed to cite 6 any medical testing results or objective observations to support her 7 conclusions, 8 evidence of record. 9 record. and her opinion (AR 18). conflict[ed] with the substantial These two reasons are supported by the Accordingly, they are specific and legitimate reasons. 10 11 The ALJ determined that if Plaintiff stopped his repeated substance 12 abuse, his mental limitations would be non-severe and he would not have 13 a physical impairment that would meet or equal any listing. (AR 13-14). 14 Dr. Friedman, on the other hand, limited Plaintiff to lifting 10 pounds 15 occasionally and frequently, and standing or walking less than two hours 16 a day in an eight hour workday. 17 stated that Plaintiff had moderate to marked limitations in every mental 18 work 19 assessment on Plaintiff s representations that by August 28, 2008 20 Plaintiff s drug addiction was in substantial full remission. 21 342, 531). 22 on August 29, 2008, Plaintiff s drug use was described as current. 23 (AR 352). 24 court that Plaintiff had admitted to using heroin and cocaine regularly 25 since his last court appearance. 26 undermines Dr. Friedman s statement that Plaintiff s drug addiction was 27 in substantial full remission, which formed the basis of her capacity category. (AR (AR 531). 528-29). Furthermore, Dr. Friedman Dr. Friedman based this (AR However, in a counseling interview with a different doctor In September 2008, Plaintiff s social worker informed the 28 11 (AR 16, 374). This evidence 1 assessment of Plaintiff s capabilities. (AR 342). Thus, it was not 2 error for the ALJ to give Dr. Friedman s opinion little weight. 3 4 The ALJ specifically discusses the findings of five doctors in its 5 opinion: Dr. Smith, an examining psychologist; Dr. Konia, an examining 6 psychologist who testified at the hearing; Dr. Lin, a consultative 7 internal medical examiner; Dr. Ross, a state medical consultant; and Dr. 8 Friedman, Plaintiff s treating physician. 9 and Dr. Konia found Plaintiff would have no limitations and no (AR 17-18). Both Dr. Smith 10 impairments if he abstained from drug use. 11 stated that Plaintiff could stand or walk for 4 hours in an 8 hour 12 workday and lift or carry 50 pounds occasionally and 25 pounds 13 frequently. 14 pounds occasionally and 10 pounds frequently and stand and walk 6 15 hours in an 8 hour workday. 16 limited Plaintiff to lifting 10 pounds occasionally and frequently, and 17 standing or walking less than two hours a day in an eight hour workday. 18 (Id.). (AR 17). (AR 17-18, 36). Dr. Lin Dr. Ross reported that Plaintiff could lift 20 (AR 18). Dr. Friedman, on the other hand, 19 20 The ALJ is responsible for reviewing the evidence and resolving 21 conflicts or ambiguities in the evidence. Magallanes v. Bowen, 881 F.2d 22 747, 751 (9th Cir. 1989). 23 judgment for that of the ALJ as long as the ALJ s determination is 24 supported by substantial evidence. 42 U.S.C. § 405(g). 25 the ALJ could properly have given the opinion of Dr. Friedman little 26 weight based solely on the substantial evidence of the conflicting 27 medical evidence of three of the five medical experts. 28 Tonapetyan, 242 F.3d at 1149. This Court may not substitute its own 12 In this case, See, e.g., 1 In sum, Plaintiff s first contention, that the ALJ failed to 2 properly develop the record, is contradicted by the fact that the ALJ 3 simply misspoke when he said that none of Dr. Friedman s files are part 4 of the record. 5 ALJ s error was ultimately harmless. 6 little weight, the ALJ permissibly resolved the conflict between the 7 medical experts based on the substantial evidence of record. Therefore, 8 the Court disagrees with Plaintiff s first and second claims. No remand 9 is required. (AR 18). Although this statement was erroneous, the In giving Dr. Friedman s opinion 10 11 12 B. The ALJ Properly Determined Plaintiff s Residual Functional Capacity 13 14 Plaintiff s third claim is that the ALJ improperly assessed 15 Plaintiff s RFC by omitting aspects of Dr. Lin s findings from the RFC. 16 (Complaint Memo. at 7). 17 erred by not including Dr. Lin s RFC limitation that Plaintiff can only 18 stand or walk for 4 hours in an 8 hour workday (Id.; AR 17). 19 Court disagrees. Specifically, Plaintiff contends that the ALJ This 20 21 The ALJ gave significant weight to the opinion of Dr. Lin. 22 17). As Dr. Lin recommended, the ALJ s RFC stated Plaintiff was capable 23 of lifting or carrying 50 pounds frequently and 25 pounds occasionally. 24 (AR 15, 17, 191). However, the ALJ did not adopt the further limitation 25 that Dr. Lin recommended: that Plaintiff could only stand or walk for 26 four hours in an eight hour workday. 27 28 13 (AR 15, 17, 192). (AR 1 In this case, the ALJ adopted that portion of Dr. Lin s opinion 2 that he found was well-supported by the medical evidence and not 3 inconsistent with other substantial evidence of record. 4 Three of the five medical experts, Dr. Smith, Dr. Ross, and Dr. Konia, 5 rejected 6 Therefore, the ALJ could properly find that this portion of Dr. Lin s 7 opinion was not supported by the record and give it little weight. Dr. Lin s standing and walking limitation. (AR 18). (AR 17-18). 8 9 It is not necessary for the ALJ to agree with everything an expert 10 witness says in order to hold that his testimony contains substantial 11 evidence, where the bases for the opinion were supported by objective 12 medical evidence. 13 arbiter 14 Tommasetti 15 Therefore, the ALJ did not err in disregarding portions of Dr. Lin s 16 opinion when assessing the Plaintiff s RFC. with v. Magallanes, 881 F.2d at 753. respect Astrue, to resolving 533 F.3d The ALJ is the final ambiguities 1035, in 1041-42 the (9th evidence. Cir. 1995). 17 18 C. The ALJ Properly Determined That Plaintiff Could Perform His Past Relevant Work 19 20 21 In his forth claim, Plaintiff contends that the ALJ erred in 22 concluding that Plaintiff could perform his past relevant work. 23 Complaint Memo. at 8). 24 relied on the vocational expert s (VE) testimony and failed to 25 properly consider the actual physical and mental demands of Plaintiff s 26 past 27 disagrees. relevant work as (See According to Plaintiff, the ALJ improperly a warehouse 28 14 laborer. (Id.). This Court 1 Plaintiff has the burden of showing that he could not perform the 2 job as actually performed or as generally performed. See Villa v. 3 Heckler, 797 F.2d 794, 798 (9th Cir. 1986) (at step four of the 4 sequential 5 inability to return to his former type of work and not just to his 6 former job). 7 factual findings to support his conclusion. Pinto v. Massanari, 249 8 F.3d 840, 844 (9th Cir. 2001). 9 the claimant s RFC to the physical and mental demands of the claimant s evaluation process, claimant has burden of proving an However, the ALJ still has a duty to make the requisite relevant work. Id. The ALJ performs this duty by comparing 10 past at 844-45; 20 C.F.R. §§ 404.1520(f), 11 416.920(f). 12 relevant work, the ALJ should refer to the Dictionary of Occupational 13 Titles ( DOT ). 14 1435 (9th Cir. 1995)). Although the ALJ may rely on a vocational expert 15 to determine the actual demands of the claimant s past relevant work, 16 it should be noted that if an ALJ determines that an individual can 17 return to his past relevant work, no VE testimony is necessary. See 18 Pinto, 249 F.3d at 844; Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 19 1996). To determine the general demands of the claimant s past Id. at 845 (citing Johnson v. Shalala, 60 F.3d 1428, 20 21 Here, the ALJ made all requisite findings. The ALJ first 22 determined that, based on all of the evidence, Plaintiff had the RFC to 23 perform medium work with some environmental restrictions. (AR 15). The 24 ALJ then properly relied on the VE, who used the DOT to determine the 25 physical and mental demands of Plaintiff s past work as a warehouse 26 laborer. 27 Titles ( DOT ), Plaintiff s past work as a warehouse laborer was 28 unskilled and required light to medium exertion. The VE stated that based on the Dictionary of Occupational 15 (AR 146; DOT No. 1 922.687.058). Plaintiff, on the other had, contends that his past work 2 actually required him to walk for seven hours and stand for six hours 3 in an eight hour day. (AR 116). 4 5 However, even if a plaintiff cannot perform the functional demands 6 and duties actually required by his former job, if he can perform the 7 demands and duties as generally required by employers, he is not 8 disabled. See 20 C.F.R. § 416.960(b)(2) ( [A] vocational expert or 9 specialist may offer expert opinion testimony in response to a 10 hypothetical question about whether a person with the physical and 11 mental limitations imposed by the claimant s medical impairment(s) can 12 meet the demands of the claimant s previous work, either as the claimant 13 actually 14 economy. ); SSR 82-61 ( Under this test, if the claimant cannot perform 15 the excessive functional demands and/or job duties actually required in 16 the former job but can perform the functional demands and job duties as 17 generally required by employers throughout the economy, the claimant 18 should be found to be not disabled. ). performed it or as generally performed in the national 19 20 Accordingly, based on the testimony of the VE, the ALJ properly 21 found that Plaintiff is capable of performing his past relevant work as 22 a warehouse laborer as generally performed in the economy, and thus is 23 not disabled. (AR 19-20). 24 \\ 25 \\ 26 27 28 16 1 VII. 2 CONCLUSION 3 4 Pursuant to sentence four of 42 U.S.C. § 405(g),4 IT IS ORDERED 5 that Judgment be entered AFFIRMING the decision of the Commissioner and 6 dismissing this action with prejudice. IT IS FURTHER ORDERED that the 7 Clerk of the Court serve copies of this Order and the Judgment on 8 counsel for both parties. 9 10 DATED: August 6, 2010. 11 _____/S/_____________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 This sentence provides: The [district] court shall have power 27 to enter, upon the pleadings and transcript of the record, a judgment 28 affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 17

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