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Fred L. Gendel v. Michael J. Astrue

August 2, 2012


The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge



Currently pending before the Court is Fred Gendel's Petition for Review (Dkt. 1). He seeks judicial review to set aside the final decision of the Commissioner's denial of his claim for Disability Insurance Benefits under Title II of the Social Security Act. Gendel brings this action pursuant to 42 U.S.C. §§ 405(g), 1383(c).

Having carefully reviewed the record, and being otherwise fully advised, the Court enters the following Memorandum Decision and Order.


On March 3, 2009, Fred Gendel (hereinafter, "Petitioner" or "Claimant") applied for disability insurance benefits under Title II of the Social Security Act (the "Act"). (AR 130-31). This is Petitioner's second application for such benefits.*fn1 (AR 61-77). In this application, Petitioner alleges disability beginning March 27, 2007, due to degenerative disc disease of the cervical, thoracic and lumbar spine, cyanosis of the right index finger and hypertension. (AR 144). The Commissioner denied Petitioner's initial application, (AR 78-79), and then again after reconsideration. (AR 80-81). Thereafter, Petitioner filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). (AR 97). ALJ Marie Palachuk held a hearing on May 20, 2010, in Spokane, WA. (AR 105-24). Petitioner appeared personally, and was represented by attorney Mark B. Jones at that hearing. (AR 21-60). Dr. George W. Wyatt, medical expert, and Deborah Nelson Lapoint, vocational expert, were also present and testified at that hearing. (AR 21).

On May 26, 2010, the ALJ denied Petitioner's claim based on a finding that during the period of the claimed disability, Petitioner "had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant should kneel, crawl, and squat only on an occasional basis and should avoid concentrated exposure to dangerous equipment and industrial vibrations." (AR 12). Thus, "[c]laimant was capable of performing past relevant work as a network control operator, data communications technician and field engineer" because "this work did not require the performance of any work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565)." (AR 16).

Petitioner requested the Appeals Council review the ALJ's decision. (AR 4). The Appeals Council denied review on March 25, 2008, making the AJL's decision the final determination of the Commissioner of Social Security. (AR 1-3).

Having exhausted his administrative remedies, Petitioner timely filed the instant action requesting that the Commissioner's determination be reversed or, in the alternative, that this matter be remanded for an ALJ hearing de novo. (Petition for Review, Dkt. 1at2).


At the time of the hearing before the ALJ, Petitioner was fifty-seven (57) years old. (AR 130). Petitioner has a 12th grade education, as well as two years vocational school training in electronics. (AR 152). Petitioner has past relevant work experience as a technician in several industries, including as a data communications technician, network control operator, and field engineer. (AR 155-66). Petitioner states that due to his disability, he has been unable to perform any of those past job functions. (AR 4).

In her May 26, 2010, decision, the ALJ determined that Petitioner has the following combination of severe impairments: "degenerative disc disease of the cervical, thoracic and lumbar spine; cyanosis of the right index finger; and hypertension." (AR 10).

However, the ALJ concluded that, in denying his application, Petitioner had not met his burden of proving that he had been under a disability as defined by the Social Security Act during the period under consideration. (AR 17).


It is undisputed that the burden of proof rests upon the Petitioner to establish entitlement to disability benefits. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). In evaluating the evidence at an administrative hearing, the ALJ must follow a five-part sequential process. 20 C.F.R. §§ 404.1520, 416.920 (2005).

If the Commissioner's decision is supported by substantial evidence and based upon proper legal standards, then it will be upheld. 42 U.S.C. § 405(g) (2000); Matney ex rel. Matney v. Sullivan, 921 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). Findings of fact by the ALJ are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Vidal v. Harris, 637 F.2d 710, 712 (9th Cir. 1981). In other words, if there is substantial evidence to support the ALJ's factual determinations, they must be upheld, even in the face of conflicting evidence. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).

Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flatten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). This standard requires "more than a scintilla," but "less than a preponderance," Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990), and "does not mean a large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988).

With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; Matney, 981 F.2d at 1019. The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984), resolving ambiguities, see Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394--95 (9th Cir. 1984), and drawing inferences logically flowing from the evidence, Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). When the evidence is susceptible to more than one rational interpretation in a disability ...

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