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GIBSON v. BARNHART

October 5, 2005.

REBECCA GIBSON, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: WILLIAM McCURINE, JR., Magistrate Judge

REPORT AND RECOMMENDATION DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT
Plaintiff Rebecca Gibson brings this action pursuant to 42 U.S.C. § 405*fn1 to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Social Security Disability Insurance Benefits ("SSDI") under Title II and Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1381, et seq. Ms. Gibson has filed a motion for summary judgment. In that motion, Ms. Gibson argues that she should have been found "disabled" under the Act and the Appeals Council's decision adopting the Administrative Law Judge's ("ALJ") decision of October 14, 2003, denying her benefits, should be reversed because the ALJ's decision is not supported by substantial evidence and is based on legal error. The Commissioner (Defendant) has filed a cross-motion for summary judgment. In the motion, the Commissioner argues that the ALJ's decision is supported by substantial evidence and is not based on legal error.

These motions were referred to Magistrate Judge McCurine for a report and recommendation pursuant to 28 U.S.C. § 636(b)(2) and Federal Rule of Civil Procedure 72(b). Pursuant to the Southern District of California Local Civil Rule 7.1(d)(1), the Court finds these motions may be decided on the papers and that no oral argument is necessary. After careful consideration of the papers, the administrative record, and the applicable law, this Court recommends the Commissioner's decision adopting the ALJ's decision be AFFIRMED, Ms. Gibson's motion for summary judgment be DENIED, and Commissioner's cross-motion for summary judgment be GRANTED.

  I. PROCEDURAL HISTORY

  On May 13, 2002, Plaintiff filed an application for Social Security Disability Insurance Benefits ("SSDI") claiming disability. Administrative Record ("A.R." at 14). Plaintiff's application was denied in the first instance and again after reconsideration. (A.R. at 14). Plaintiff requested an administrative hearing, which took place on May 5, 2003. Administrative Law Judge ("ALJ") Samuel Durso denied her request for benefits and issued an order on June 18, 2003. Plaintiff sough review of the ALJ's decision which was denied by the Appeals Council on October 17, 2003. (A.R. at 4). Hence, the ALJ's decision became the final decision of the Commissioner. (A.R. at 4). Thereafter, plaintiff filed the instant action in Federal Court.

  II. FACTUAL BACKGROUND

  Plaintiff was born March 17, 1958 and is currently 47 years old. (A.R. at 25). At the alleged onset of her disability on May 13, 2002, plaintiff was 44 years old. (A.R. at 15). Ms. Gibson has a high school diploma. Her past relevant work experience includes twenty-one years as an electronics assembler. (A.R. at 15).

  At the May 5, 2003, hearing before the ALJ, Ms. Gibson testified that she suffers from systemic lupus Erythematosus and lupus profundus. (A.R. at 27-30). Plaintiff testified that she stopped working because of joint pain and soreness in both her shoulders, hands, and knees. (A.R. at 27). Plaintiff testified that due to her pain she can not sit for more than thirty minutes and must get out and move around for about 15-20 minutes before she can sit back down. Plaintiff uses a cane when she walks and asserts she can only walk about half of a block before stopping. (A.R. at 27). Plaintiff testified that she can not lift and carry more than 10 pounds. She uses elbow pads and splints for both hands. (A.R at 28-29). She is prescribed and takes pain medication. (A.R. at 29).

  III. LEGAL STANDARD

  The supplemental security income program established by Title XVI of the Act provides benefits to disabled persons without substantial resources and little income. 42 U.S.C. § 1383. To qualify, a claimant must establish an inability to engage in "substantial gainful activity" because of a "medically determinable physical or mental impairment" that "has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). The disabling impairment must be so severe that, considering age, education, and work experience, the claimant cannot engage in any kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 1382(a)(3)(B).

  The Commissioner makes this assessment by a five-step analysis. First, the claimant must currently not be working. 20 C.F.R. § 416.920(b). Second, the claimant must have a "severe" impairment. 20 C.F.R. § 416.920(c). Third, the medical evidence of the claimant's impairment is compared to a list of impairments that are presumed severe enough to preclude work; if the claimant's impairment meets or equals one of the listed impairments, benefits are awarded. 20 C.F.R. § 416.920(d). Fourth, if the claimant can do his past work benefits are denied. 20 C.F.R. § 416.920(e). Fifth, if the claimant cannot do his past work and, considering the claimant's age, education, work experience, and residual functional capacity, cannot do other work that exists in the national economy, benefits are awarded. 20 C.F.R. § 416.920(f). The last two steps of the analysis are required by statute. 42 U.S.C. § 1382(a)(3)(B).

  In addition, when evaluating the severity of a claimant's alleged mental impairments, the Commissioner uses a "special technique" at each level of the review process. 20 C.F.R. § 416.1520a. In order to be considered disabled under the Act, the claimant must have (1) a medically determinable mental impairment(s), 20 C.F.R. § 416.1520a(b)(1),*fn2 and (2) exhibit specified functional limitations as a result of that impairment(s) that prohibit the claimant from engaging in any gainful activity. 20 C.F.R. § 416.1520a(b)(2). If the claimant has a medically determinable mental impairment but does not exhibit the requisite functional limitations, the claimant may nevertheless still be considered disabled if the claimant exhibits clusters of symptoms or a syndrome that indicate an inability to engage in gainful activity. 20 C.F.R. § 404.1520a(d); 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00.A. (impairment(s) must either pose functional limitations or cause symptoms or a syndrome to support a finding that the claimant is disabled).

  Section 1383(c)(3) of the Social Security Act through Section 405(g) of the Act, allow unsuccessful applicants to seek judicial review of a final agency decision of the Commissioner. 42 U.S.C. §§ 1383(c)(3), 405(g). The scope of judicial review is limited, however, and the Commissioner's denial of benefits "will be disturbed only if it is not supported by substantial evidence or is based on legal error." Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433(9th Cir. 1988) (citing Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)).

  Substantial evidence means "more than a mere scintilla" but less than a preponderance. Sandqathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). "[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusions, Desrosiers v. Secretary of Health & Human Services, 846 F.2d 573, 576, (9th Cir. 1988). If the evidence supports more than one rational interpretation, the court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). When the evidence is inconclusive, "questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary." Sample, 694 F.2d at 642. The ALJ has a special duty in social security cases to fully and fairly develop the record in order to make an informed decision on a claimant's entitlement to disability benefits. DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). Because disability hearings are not adversarial in nature, the ALJ must "inform himself about the facts relevant to his decision," even if the claimant is represented by counsel. Id. (quoting Heckler v. Campbell, 461 U.S. 458, 471 n. 1 (1983)).

  Even if the reviewing courts finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978). Section 405(g) permits a court to enter a judgment affirming, modifying or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social Security Administrator for further proceedings. Id.

  IV. DISCUSSION

  Medical Evidence Presented

  To understand Plaintiff's alleged medical problems a chronological review of her relevant medical history is presented here:

  — March 20, 1998: Plaintiff is seen by Dr. Serocki, M.D. for her shoulder. Patient status is noted by Dr. Serocki as ...


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