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Fortes v. Astrue

March 18, 2009

KIM FORTES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OR SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

Plaintiff and Defendant have filed cross-motions for summary judgment. For the reasons set forth below, Plaintiff's motion is GRANTED and Defendant's motion is DENIED.

I. PROCEDURAL BACKGROUND

In December, 2001, Plaintiff protectively filed applications for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. Plaintiff alleged disability beginning December 15, 2001. Plaintiff's claims were denied initially and upon reconsideration. On February 22, 2007, a hearing was held before Administrative Law Judge ("ALJ") Leland H. Spencer. Plaintiff, who was represented by an attorney, testified on her own behalf. A medical expert and vocational expert also testified.

In a decision dated May 24, 2007, the ALJ found that Plaintiff was not disabled.

The ALJ found that (1) Plaintiff meets the insured status requirements of the Social Security Act through March 31, 2002; (2) Plaintiff has not engaged in substantial gainful activity since December 15, 2001; (3) Plaintiff has the following severe impairments: lumbar strain, spondylolisthesis and degenerative disc disease of the lumbar spine; cervical strain; right wrist and hand carpal tunnel syndrome and polyneuropathy; and major depressive disorder; (4) Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1; (5) Plaintiff has the residual functional capacity to lift or carry 10 pounds frequently and 20 pounds occasionally; sit for 6 hours out of an 8-hour workday; stand for 6 hours out of an 8-hour workday; no more than occasional bending and stooping; no more than occasional use of the right (dominant) hand for gross handling and fine fingering; no more than frequent rotation of the neck; and mentally limited to simple and repetitive tasks; (6) Plaintiff is unable to perform any past relevant work; and (7) considering Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, specifically "host" and "cashier."*fn1

The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. On February 19, 2008, Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).

II. STANDARD

The Commissioner's denial of benefits may be set aside if it is based on legal error or is not supported by substantial evidence. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). Substantial evidence is more than a scintilla but less than a preponderance. Id. Substantial evidence is "relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Flatten v. Secretary of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).

III. DISCUSSION

Plaintiff argues that the ALJ's decision must be set aside because (1) the ALJ's assessment of Plaintiff's residual functional capacity was not supported by substantial evidence from the record; (2) the ALJ's reasons for discrediting Plaintiff's allegations of disabling pain were legally insufficient; and (3) the ALJ failed to resolve conflicts between the testimony of the vocational expert ("VE") and occupational information supplied by the Dictionary of Occupation Titles ("DOT"). The Court will address each of Plaintiff's arguments in turn.

A. The ALJ's RFC Assessment

With respect to Plaintiff's physical functional limitations, the ALJ's assessment was supported by substantial evidence. Although the ALJ gave significant weight to the medical expert's opinion, he did not adopt the medical expert's conclusion that Plaintiff was limited to lifting 25 pounds frequently and 50 pounds occasionally, with no postural limitations except occasional crawling, stooping, and avoidance of concentrated exposure to vibration. (AR 407.) Instead, the ALJ gave weight to the opinions of Brett K. Allen, D.C., Plaintiff's treating chiropractor, and T. Auerbach D.C., an Agreed Medical Examiner, both of whom concluded that Plaintiff was precluded from heavy lifting. (AR 214; 345.) The ALJ found that Plaintiff had the residual functional capacity to lift or carry 10 pounds frequently and 20 pounds occasionally; sit for 6 hours out of an 8-hour workday; stand for 6 hours out of an 8 hour workday; no more than occasional bending and stooping; no more than occasional use of the right hand for gross handling and fine fingering; and no more than frequent rotation of the neck. (AR 24.)

The medical records do not reveal physical functional limitations greater than those found by the ALJ. Plaintiff argues that the ALJ overlooked the portion of Dr. Auerbach's report where Dr. Auerbach reviewed Plaintiff's past medical records. Dr. Auerbach's summary of the medical records reflects that Dr. Allen's reports indicated that Plaintiff's work status was TTD (temporarily totally disabled) from December 14, 2001 through July 14, 2003. (AR 338-43.) However, it does not appear that Dr. Allen made any specific findings of functional limitation establishing that Plaintiff was disabled. In his August 11, 2003 report, which does discuss Plaintiff's functional limitations, Dr. Allan stated that Plaintiff's disability precluded her from heavy work because Plaintiff had lost approximately 50% of her pre-injury capacity to perform tasks such as lifting, pushing, pulling, repeated bending, stooping, or comparable physical efforts. (AR 214.) Dr. Allan ...


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