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Guevara v. Astrue

March 11, 2009


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on September 4, 2007, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's applications for a period of disability ("POD"), disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On September 14, 2007, the parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on June 13, 2008, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, in the alternative, remanding the matter for further administrative proceedings; and defendant seeks an order affirming the Commissioner's decision. The Court has taken the parties' Joint Stipulation under submission without oral argument.


On April 30, 2004, plaintiff filed applications for a POD, DIB, and SSI. (Administrative Record ("A.R.") 78-81.) Plaintiff alleges an inability to work since March 26, 2004, due to fibromyalgia. (A.R. 58, 101.) Plaintiff has past work experience as an office clerk and housekeeper. (A.R. 111, 24.)

The Commissioner denied plaintiff's application initially and upon reconsideration. (A.R. 27-28, 35-39, 44-49.) On April 19, 2006, plaintiff, who was represented by counsel, testified at a hearing before Administrative Law Judge Gene Duncan ("ALJ"). (A.R. 299-329.) On June 16, 2006, the ALJ denied plaintiff's claim, and the Appeals Counsel subsequently denied plaintiff's request for review of the ALJ's decision. (A.R. 19-25, 8-10.)


The ALJ determined that plaintiff failed to prove the requisite "changed circumstances" indicating a greater disability, under Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), because "[t]here has been no documented deterioration of [plaintiff's] physical health since the prior adverse Administrative Law Judge['s] decision of March 25, 2004." (A.R. 22.) The ALJ found that plaintiff met the insured status requirements of the Social Security Act through December 31, 2007, and had not engaged in substantial gainful activity at any time relevant to the ALJ's decision. (A.R. 21.) The ALJ further found that plaintiff suffers from a singular "severe" impairment of fibromyalgia, but did not suffer from a "severe" mental impairment. (Id.) The ALJ also found that "plaintiff's complaints of a disabling level of pain are not entirely credible and are not reasonably supported by objective medical evidence, especially when consideration is given to the idiosyncratic nature of pain." (A.R. 23.) Based upon the ALJ's residual functional capacity assessment, and vocational expert testimony, the ALJ found that plaintiff is able to perform her past relevant work as a housekeeper. (A.R. 24.) Accordingly, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act during the time period at issue. (Id.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the record can constitute substantial evidence, only those "'reasonably drawn from the record'" will suffice. Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff alleges the following four issues: (1) whether the ALJ properly considered the presumption of continuing non-disability; (2) whether the ALJ properly considered plaintiff's past relevant work; (3) whether the ALJ and the Appeals Council properly considered the medical evidence of record; and (4) whether the ALJ properly considered plaintiff's excess pain testimony. (Joint Stipulation ("Joint Stip.") at 4.)

I. The ALJ Erred In His Consideration Of The Continuing Non-Disability Presumption

In Chavez, supra, the Ninth Circuit held that remand was appropriate when there were "changed circumstances" between the claimant's first administrative decision and the second administrative decision, namely the claimant's reaching advanced age status, which precluded the application of res judicata. 844 F.2d at 691. However, the first administrative law judge's findings regarding the claimant's residual functional capacity, education, and work experience were "entitled to some res judicata ...

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