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Boulanger v. Astrue

May 15, 2009



This social security action was submitted to the court without oral argument for ruling on plaintiff's motion for summary judgment or remand 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 calculate and award benefits.


On May 21, 2003, plaintiff filed applications for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act) and Supplemental Security Income (SSI) under Title XVI of the Act, alleging disability beginning July 23, 2002. (Transcript (Tr.) at 68-72, 228-32.) Plaintiff's applications were denied initially in July 2003 and upon reconsideration in November 2003. (Tr. at 47, 49-60, 233-44.) A hearing was held before Administrative Law Judge (ALJ) Robert K. Rogers, Jr. on November 19, 2004. (Tr. at 61, 349-64.) Plaintiff, who was not represented at that time, testified at the hearing, as did a vocational expert. In a decision issued on January 15, 2005, the ALJ found plaintiff not disabled. (Tr. at 34-41.)

In February 2005, plaintiff obtained counsel, who requested review of the ALJ's decision. (Tr. at 27-30.) On April 21, 2005, the Appeals Council granted the request, vacated the decision, and remanded the case to the ALJ with directions to address the opinion of treating physician Dr. Laurence Heard, evaluate plaintiff's mental impairment, offer a new hearing, and issue a new decision. (Tr. at 246-48.) The Appeals Council specifically required the ALJ to:

(1) obtain additional evidence concerning plaintiff's physical and mental impairments; (2) reconsider Dr. Heard's opinion after requesting that he provide additional evidence and/or clarify his opinion; (3) evaluate plaintiff's mental impairment using the proper technique; (4) give further consideration to plaintiff's residual functional capacity and provide support for all assessed limitations; and (5) obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on plaintiff's occupational base. (Tr. at 247.)

On remand, a hearing was held before ALJ Mark C. Ramsey*fn1 on November 22, 2005. (Tr. at 365-407.) Plaintiff appeared with counsel and testified. A second vocational expert and a medical expert also testified. At a supplemental hearing held on October 17, 2006, plaintiff and the second vocational expert testified again. (Tr. at 408-32.) On January 22, 2007, the ALJ issued a decision finding plaintiff not disabled. (Tr. at 14-19.)

The ALJ entered the following findings in the January 22, 2007 decision:

1. The claimant met the disability insured status requirements of the Act on July 23, 2002, the date the claimant stated she became unable to work, and continues to meet them through September 30, 2004.

2. The claimant has not engaged in substantial gainful activity since July 23, 2002.

3. The medical evidence establishes that the claimant has severe left thoracic outlet syndrome,*fn2 but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.

4. The claimant's testimony that she is restricted to sitting and standing for one half hour at a time, walking one half to one block or a maximum of about five to 10 minutes of walking, are not credited because such limitations are not shown to be a reasonable consequence of her medically determinable impairment. Additionally, even assuming such limitations were a reasonable consequence of her medically determinable impairment the record viewed as a whole and particularly indications of symptom elaboration by the claimant undermine her credibility regarding her stated limitations and thus cannot be credited.

5. The claimant has the residual functional capacity to perform the physical exertion and non-exertional requirements of work involving simple, unskilled work requiring that the individual not be required to work in unison with others and that she is unlimited in standing, walking, and sitting, and is limited to occasional lifting, carrying, etcetera with her dominant right*fn3 hand to 2 pounds and with her non-dominant right arm can handle light work involving 10 pounds frequently and 20 pounds occasionally and no overhead work with the left (20 CFR §§ 404.1545 and 416.945).

6. The claimant is unable to perform her past relevant work. 7. The claimant's residual functional capacity for the full range of light work is reduced by the limitations indicated above.

8. The claimant is 44 years old, which is defined as younger individual (20 CFR §§ 404.1563 and 416.963).

9. The claimant has greater than a high school education (20 CFR §§ 404.1564 and 416.964).

10. The claimant does not have any acquired work skills which are transferable to the skilled or semi-skilled work functions of other work (20 CFR §§ 404.1568 and [sic]

11. Although the claimant's additional non-exertional limitations do not allow her to perform the full range of light work, using the Medical-Vocational Guidelines as a framework for decisionmaking, there are a significant number of jobs in the national economy which she could perform. Examples of such jobs are: can filing [sic] machine operator, information clerk, and office helper.

12. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR §§ 404.1520(f) and 416.920(f)). (Tr. at 18-19.)

On April 23, 2007, the Appeals Council denied plaintiff's request for review of the ALJ's January 22, 2007 decision. (Tr. at 7-11.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the complaint in this action on May 2, 2007.


The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record as a whole 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. 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 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Morgan, 169 F.3d at 599); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

A reviewing court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion. Jones, 760 F.2d at 995. The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or non-disability, the finding of the ALJ is conclusive, Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

In determining whether or not a claimant is disabled, the ALJ should apply the five-step sequential evaluation process established under Title 20 of the Code of Federal Regulations, Sections 404.1520 and 416.920. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step process has been summarized as follows:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. ...

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