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Wilberg v. Astrue

April 20, 2009

DANNA WILBERG, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



ORDER

This social security action was submitted to the court, without oral argument, for ruling on plaintiff's motion for judgment on the pleadings and defendant's cross-motion for summary judgment. For the reasons explained below, plaintiff's motion is granted, the decision of the Commissioner of Social Security (Commissioner) is reversed, and the matter is remanded with the direction to award benefits.

PROCEDURAL BACKGROUND

Plaintiff Danna Wilberg first applied for Disability Insurance Benefits under Title II of the Social Security Act (Act) on October 8, 1999, alleging onset of disability on October 7, 1998. (Transcript (Tr.) at 82-84.) The application was denied initially in January 2000 and upon reconsideration in March 2000. (Tr. at 71-81.) Plaintiff filed a new application on August 30, 2000, again alleging onset of disability on October 7, 1998. (Tr. at 151-53.) The application was denied initially in February 2001 and upon reconsideration in May 2001. (Tr. at 136-46.) Pursuant to plaintiff's request, a hearing was held before an administrative law judge (ALJ) on April 9, 2002. (Tr. at 147-48, 530-56). Plaintiff was represented by counsel and testified at the hearing. (Tr. at 530-56.) In a partially favorable decision issued on May 29, 2002, ALJ Antonio Acevedo-Torres determined that plaintiff had been disabled since March 28, 2002, but was not disabled prior to that date. (Tr. at 53-64.) Plaintiff requested review of the decision regarding the onset of disability date. (Tr. at 47-49.)

On September 25, 2004, the Appeals Council affirmed the ALJ's decision with respect to the favorable period but vacated it with respect to the period before March 28, 2002. (Tr. at 395-98.) On remand, the ALJ was required to (1) obtain additional evidence concerning plaintiff's impairments in order to complete the administrative record; (2) reconsider plaintiff's residual functional capacity during the period at issue, provide a rationale for and cite evidence supporting the assessed limitations, and explain the weight given to the medical opinions; and (3) obtain evidence, if necessary, from a vocational expert regarding the effect of the assessed limitations on plaintiff's occupational base. (Tr. at 397.) The ALJ was required to offer plaintiff a further hearing and to issue a new decision for the period before March 28, 2002. (Tr. at 398.)

On remand from the Appeals Council, the ALJ issued a supplemental notice of hearing on August 4, 2005. (Tr. at 31-34) Plaintiff was again represented by counsel and testified at the hearing conducted on September 12, 2005. (Tr. at 557-72). In a decision issued on November 17, 2005, the ALJ again determined that plaintiff was not disabled prior to March 28, 2002. (Tr. at 16-30.) The ALJ entered the following findings:

1. The claimant meets the non-disability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through the date of this decision.

2. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.

3. The claimant's fibromyalgia, chronic neck and low back pain, and degenerative changes of the cervical and lumbar spine were considered "severe" based on the requirements in the Regulations 20 CFR § 404.1520(c).

4. These medically determinable impairments did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4 prior to March 28, 2002.

5. The undersigned finds the claimant's allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision prior to March 28, 2002.

6. The claimant had the following residual functional capacity prior to March 28, 2002: lift 10 pounds occasionally and less than 10 pounds frequently, walk/stand two hours, sit six hours, and occasionally perform postural activities, and she had no mental, visual, communicative, manipulative, or environmental limitations.

7. The claimant was unable to perform any of her past relevant work prior to March 28, 2002 (20 CFR § 404.1565).

8. The claimant was a "younger individual" prior to March 28, 2002 (20 CFR § 404.1563).

9. The claimant had a "high school (or high school equivalent) education" (20 CFR § 404.1564).

10. The claimant had no transferable skills from any past relevant work and/or transferability of skills was not an issue in this case prior to March 28, 2002 (20 CFR § 404.1568).

11. The claimant had the residual functional capacity to perform the full range of sedentary work prior to March 28, 2002 (20 CFR § 404.1567).

12. Based on an exertional capacity for sedentary work, and the claimant's age, education, and work experience, a finding of "not disabled" is directed by Medical-Vocational Rules 201.21 and 201.22 prior to March 28, 2002.

13. The claimant was not under a "disability" as defined in the Social Security Act, at any time prior to March 28, 2002 (20 CFR § 404.1520(g)).

(Tr. at 29-30.)

On December 7, 2005, plaintiff requested review of the ALJ's second decision. (Tr. at 13-15.) The Appeals Council denied the request for review on January 23, 2007. (Tr. at 7-9.) Plaintiff then sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the complaint in this action on March 27, 2007.

LEGAL STANDARD

The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to ...


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