Guillen
Guillen v. Commissioner of Social Security
Opinion
Lead Opinion
MEMORANDUM *
Felipe Guillen appeals the district court’s affirmance of a final decision by the Commissioner of Social Security denying his claim for disability insurance benefits under Title II of the Social Security Act (“SSA”). 1 We review a district court’s order affirming the Commissioner’s final decision de novo. Morgan v. Commissioner of SSA, 169 F.3d 595 , 599 (9th Cir.1999). The Commissioner’s decision must be affirmed unless the Administrative Law Judge’s (“ALJ”) findings are “based on legal error or are not supported by substantial evidence in the record as a whole.” Schneider v. Commissioner of SSA, 223 F.3d 968, 973 (9th Cir.2000). “Where the evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Morgan, 169 F.3d at 599.
Guillen argues that the ALJ’s determination that he is not disabled, as defined by the SSA, is not supported by substantial evidence. The ALJ concluded that Guillen would need to use the restroom three to five times during an eight-hour work shift. Based on a hypothetical that used three to five restroom breaks for Guillen at work, the vocational expert (“VE”) testified that Guillen could…
Dissenting Opinion
Noonan, J.
dissenting:
Andrews held that “[w]here ... a non-treating source’s opinion contradicts that of the treating physician but is not based on independent clinical findings, or rests on clinical findings also considered by the treating physician, the opinion of the treating physician may be rejected only if the ALJ gives specific, legitimate reasons for doing so that are based on substantial evidence in the record.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995). No such specific reasons were given.
The testimony of the treating physician, Dr. Canale, supported Guillen’s case: Guillen could find gainful employment if he could get to a bathroom “any time he needs to.” In sharp contrast, the ALJ assumed that Guillen would have to use a bathroom no more than five times in an eight-hour shift. The relevance to the case of Guillen’s routine activities is not evident. These activities are not gainful. They do not require unbroken attention. They do not resemble work at a job.
I would reverse and remand.