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
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
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
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
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).
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.
Medical Evidence Presented
To understand Plaintiff's alleged medical problems a
chronological review of her relevant medical history is presented
March 20, 1998: Plaintiff is seen by Dr. Serocki, M.D. for
her shoulder. Patient status is noted by Dr. Serocki as ...