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Laniohan v. Astrue

September 29, 2009



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


In October 1998, plaintiff filed applications for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act) and for Supplemental Security Income (SSI) under Title XVI of the Act, alleging disability commencing on September 8, 1997, due to pain in her arms, hands, shoulders, and neck. (Transcript (Tr.) at 27, 42.) The applications were denied initially in November 1998. (Id.) After they were denied upon reconsideration, a hearing was held on July 26, 1999, before Administrative Law Judge (ALJ) James N. Baker. (Tr. at 27.) Plaintiff, represented at that time by attorney Gary C. Nelson, testified at the hearing, as did a vocational expert. The ALJ issued a decision on October 1, 1999, finding that plaintiff was not disabled at any time through the date of the decision.*fn1 (Tr. at 27-32.)

The court takes judicial notice of Laniohan v. Social Security, CIV S-01-0983 LKK PAN PS (E.D. Cal.), a case filed on May 21, 2001, in which Frances J. Laniohan, proceeding pro se, sought judicial review of the Commissioner's final decision on her 1998 applications.*fn2 (Case No. CIV S-01-0983 LKK PAN PS, Order to Show Cause filed May 7, 2002 (Doc. No. 15) at 1.) On September 18, 2001, the court approved the parties' stipulation in that case to remand pursuant to Sentence Six of 42 U.S.C. § 405(g). (Id., Stip. & Order (Doc. No. 11).) The basis for remand was that the cassette tape of the July 26, 1999 administrative hearing could not be located. The stipulation and order provided that the Appeals Council was to remand the case to an ALJ for a new hearing and new decision. (Id.) On January 29, 2002, the 2001 case was reopened after defendant filed an answer and a certified administrative transcript. (Id., Answer & Admin. Tr. (Doc. Nos. 13 & 14).) In findings and recommendations filed on March 28, 2003, Magistrate Judge Peter A. Nowinski found that the ALJ's determinations were supported by the record and free of legal error, and recommended that plaintiff's motion for summary judgment be denied and defendant's motion for summary judgment be granted. (Id., Findings & Recommendations (Doc. No. 21).) The findings and recommendations were adopted by the assigned district judge on August 22, 2003. (Id., Order (Doc. No. 24).)

On May 1, 2002, plaintiff filed new applications for DIB and SSI, again alleging onset of disability on September 8, 1997, because of severe pain in her neck, shoulders, hands, arms, legs, and back. (Tr. at 114-18, 126-35.) The applications were denied initially in August 2002 and upon reconsideration in April 2003. (Tr. at 36-38, 52-63.) On November 12, 2003, a hearing was held before ALJ William C. Thompson, Jr. (Tr. at 64, 428-59.) Plaintiff, then represented by Ann M. Cerney, Esq., appeared at the hearing and testified, as did a vocational expert. (Tr. at 428-29.) In a decision issued on February 19, 2004, the ALJ found plaintiff not disabled.*fn3 (Tr. at 42-48.) On April 29, 2005, the Appeals Council granted plaintiff's request for review, vacated the hearing decision, and remanded the case for a new decision.*fn4 (Tr. at 103-05.)

At the remand hearing held on March 28, 2006, plaintiff, again represented by attorney Ann Cerney, appeared and testified. (Tr. at 460-97.) A vocational expert also testified. (Id.) On July 8, 2006, the ALJ issued a second unfavorable decision. (Tr. at 15-22.) The following findings were entered:

1. The claimant met the insured status requirements of the Social Security Act only through December 31, 2002.

2. The claimant has not engaged in substantial gainful activity since September 8, 1997, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).

3. The claimant has the following severe impairments: carpal tunnel syndrome, diabetes mellitus, and asthma (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant 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 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to lift and/or carry forty pounds occasionally and twenty pounds frequently. There is no limitation on the ability to sit, stand or walk. She should avoid hazards such as unprotected heights or moving machinery. She should not be exposed to excessive amounts of smoke, dust, fumes or other respiratory irritants. The claimant should perform power gripping activities only occasionally.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on June 28, 1953 and was forty-four years old on the alleged disability onset date, which is defined as a "younger individual age 18-44"[] (20 CFR 404.1563 and 416.963). During the pendency of this claim and prior to her date last insured, the claimant attained the age of 50 and is now regarded as "closely approaching advance[d] age."

8. The claimant has a "marginal" education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).

11. The claimant has not been under a "disability," as defined in the Social Security Act, from September 8, 1997 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)). (Tr. at 15-23.)

On February 8, 2008, the Appeals Council denied plaintiff's request for review of the ALJ's July 8, 2006 decision. (Tr. at 5-8.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the complaint in this action on April 7, 2008.


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. ...

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