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Hunt v. Astrue

May 29, 2009


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


Plaintiff filed a Complaint on March 5, 2008, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's applications for a period of disability ("POD") and disability insurance benefits ("DIB"). On March 24, 2008, 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 January 16, 2009, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding for the payment of benefits or correction of legal errors; and defendant seeks an order affirming the Commissioner's decision. The Court has taken the parties' Joint Stipulation under submission without oral argument.


On May 28, 2002, plaintiff protectively filed an application for a POD and DIB, alleging an inability to work beginning April 14, 2000, due to reflex sympathetic dystrophy of the right upper and lower extremity, low blood pressure, and right eye visual impairment. (Administrative Record ("A.R.") 67-70.) The Social Security Administration ("SSA") denied the applications initially on January 3, 2003, and upon reconsideration on May 9, 2003. (A.R. 32-35, 38-41.) Plaintiff sought review before an Administrative Law Judge ("ALJ"). (A.R. 41A.)

On March 4, 2004, a hearing was conducted before ALJ Jay E. Levine. (A.R. 545-70.) Plaintiff, who was represented by counsel, appeared and testified at the hearing. (A.R. 24.) The ALJ denied plaintiff's claim on the following grounds: plaintiff was insured for benefits through, but not after, September 30, 2003; plaintiff has not engaged in substantial gainful activity since her alleged April 14, 2000 onset date of disability; plaintiff's allegations regarding her limitations are not totally credible; plaintiff's medically determinable impairments do not prevent her from performing her past relevant work; and plaintiff was not under a "disability," as defined by the Social Security Act, at any time through September 30, 2003. (A.R. 28-29.)

Plaintiff sought review by the Appeals Council. (A.R. 19-20.) Her request for review was denied. (A.R. 3-6.) Plaintiff then sought relief before this Court. (A.R. 616-19.) Upon stipulation of the parties, the Court reversed and remanded the matter on January 30, 2006. (A.R. 616-19.) On remand, the ALJ was directed to perform the following tasks: further address the medical evidence of record and provide a rationale for the weight given said evidence; further evaluate plaintiff's alleged mental impairment; further evaluate the side effects of plaintiff's medication; and re-evaluate plaintiff's ability to perform her past relevant work. (A.R. 590.)

On March 6, 2006, the Appeals Council vacated the prior decision, and directed the ALJ to make the following specific findings: address the opinions of David Doty, M.D., and Stuart Kuschner, M.D.; consider new evidence regarding plaintiff's mental impairment; and address plaintiff's complaints of drowsiness and memory loss, and the cognitive side effects from Topamax noted by one of plaintiff's treating physicians. (A.R. 590.) On February 13, 2007, plaintiff, represented by counsel, once more appeared and testified at a hearing before ALJ Levine. (A.R. 703-66.) On March 2, 2007, the ALJ issued a decision denying the claim, after finding that plaintiff's testimony regarding her symptoms was not entirely credible. (A.R. 590-99.) Plaintiff sought review, and the Appeals Council denied the request for review. (A.R. 571-75, 585-87.)


The ALJ found that plaintiff was not disabled, as defined in the Social Security Act, at any time from April 14, 2000, the alleged onset date of her disability, through September 30, 2003, her last insured date. (A.R. 599.)

The ALJ determined that, as of September 30, 2003, plaintiff had the following impairments which, in combination, are "severe": (1) reflex sympathetic dystrophy; (2) chronic cervical spine muscle strain with degenerative cervical disease; (3) moderate obesity; and (4) depressive and cognitive disorders not otherwise specified. (A.R. 593.) The ALJ found that plaintiff's statements regarding the intensity, persistence, and limiting effects of her symptoms prior to September 30, 2003, were not entirely credible. (A.R. 596.)

The ALJ ultimately concluded that plaintiff could not perform her past relevant work as a medical receptionist and retail clerk. (A.R. 598.) However, the ALJ found that plaintiff retained the residual functional capacity for a reduced range of light work. (A.R. 594.) The ALJ further found that plaintiff was capable of making a successful adjustment to other work that existed in significant numbers in the national economy based on her age, education, work experience, and residual functional capacity. (A.R. 599.) 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 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 a single issue: whether the ALJ properly considered plaintiff's subjective pain testimony. (Joint Stip. ("J.S.") at 5.)

I. The ALJ Failed To Provide The Requisite Clear And Convincing Reasons For Rejecting Plaintiff's Subjective Pain Testimony

Plaintiff contends that the ALJ improperly assessed her subjective symptom testimony in determining her residual functional capacity. (J.S. at 5.) For the ...

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