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Grant v. Astrue

September 30, 2009

JANICE M. GRANT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff filed a Complaint on February 28, 2008, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for a period of disability ("POD") and disability insurance benefits ("DIB"). The parties filed a Joint Stipulation on March 21, 2008, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, in the alternative, remanding the matter for the correction of legal errors; and defendant seeks an order affirming the Commissioner's decision. On January 9, 2009, the parties consented to proceed before the undersigned United States Magistrate Judge. The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

On March 31, 2005, plaintiff filed an application for a POD and DIB. (Administrative Record ("A.R.") 100-03.) Plaintiff alleges an inability to work since September 1, 2000, due to: left shoulder rotator cuff surgery; arthritis in her left hip, elbow, and knees; pre-insulin diabetes; nerve damage in her neck radiating down her left side to fingertips; hiatal hernia; and gastrointestinal reflux disease. (A.R. 59, 66, 100.) She has past relevant work experience as a travel agent.*fn1 (A.R. 28, 29.)

The Commissioner denied plaintiff's application initially (A.R. 59-63) and upon reconsideration (A.R. 66-70). On October 15, 2007, plaintiff, who was represented by counsel, testified at a hearing before Administrative Law Judge F. Keith Varni. ("ALJ"). (A.R. 630-70.) On November 1, 2007, the ALJ issued a decision that was partially favorable to plaintiff, finding her disabled from September 1, 2000, through October 26, 2005. (A.R. 19-30). Thereafter, the ALJ found that plaintiff experienced medical improvement related to her ability to work, and as of October 26, 2005, plaintiff was able to perform her past relevant work as a travel agent. (Id.) On December 10, 2007, plaintiff requested review of the ALJ's decision by the Appeals Council and submitted new evidence. (A.R. 7-14, 619-29.) On January 18, 2008, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (A.R. 3-6.)

SUMMARY OF ADMINISTRATIVE DECISION

In his written decision, the ALJ found that plaintiff met the insured status requirements of the Social Security Act as of September 1, 2000, and plaintiff has not engaged in substantial gainful activity since September 1, 2000, her alleged disability onset date. (A.R. 22.) The ALJ further found that plaintiff suffers from "severe" medically determinable impairments "involving the musculoskeletal system, cardiovascular system from hypertension, and endocrine system from insulin dependent diabetes mellitus." (Id.)

The ALJ determined that, from September 1, 2000, through October 26, 2005, plaintiff did not have the residual functional capacity ("RFC") to perform even sedentary exertional work, i.e. plaintiff was "unable to complete an 8-hour work day or 40-hour work week due to her physical symptomology." (A.R. 23.) More specifically, the ALJ determined, based on the testimony of a vocational expert, that from September 1, 2000, through October 26, 2005, plaintiff was unable to perform her past relevant work as a travel agent, plaintiff's acquired job skills did not transfer to other occupations within her RFC, and there were no jobs that existed in significant numbers that she could have performed. (A.R. 28-29.) The ALJ concluded, therefore, that plaintiff was disabled, as defined by the Social Security Act, from September 1, 2000, through October 26, 2005. (A.R. 29.)

However, in reliance on the 2005 opinions of a consultative examiner, Warren David Yu, M.D., and a State Agency physician, A. Lizarraras, M.D., the ALJ found that plaintiff experienced medical improvement and was capable of performing a limited range of light work. (A.R. 23, 29.) Specifically, the ALJ found that, as of October 26, 2005:

[Plaintiff] can lift and carry 20 pounds occasionally and 10 pounds frequently. She can stand and walk for 6 hours out of an 8-hour work day, and she can sit for 6 hours out of an 8 hour work day. She is limited to frequent pushing and pulling. She cannot climb ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs, and she can occasionally balance, stoop, kneel, crouch, and crawl. She is limited to frequent overhead reaching with the left upper extremity, and frequent handling and fingering with both upper extremities.

(A.R. 29.)

Based on the ALJ's RFC assessment and the testimony of a vocational expert, the ALJ found that, beginning October 26, 2005, plaintiff was capable of performing her past relevant work as a travel agent. (A.R. 29.) Accordingly, the ALJ concluded that plaintiff's disability ended on October 26, 2005. (A.R. 30.)

STANDARD OF REVIEW

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 the 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.

DISCUSSION

Plaintiff alleges the following three issues: (1) whether the ALJ properly evaluated plaintiff's neck limitations; (2) whether the ALJ properly evaluated plaintiff's excess pain testimony; and (3) whether the ALJ properly evaluated the testimony of third party witness Giselle Shannon. (Joint Stipulation ("Joint Stip.") at 7.)

I. The ALJ Failed To Evaluate Plaintiff's Neck Limitations Properly

Disability benefits cannot be terminated unless substantial evidence demonstrates medical improvement in the claimant's impairment, so that the claimant is able to engage in substantial gainful activity. See 42 U.S.C. § 423(f); Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983). Medical improvement is defined as "any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled." See 20 C.F.R. § 404.1594(b)(1) and (c)(1).

To determine whether there has been medical improvement, the Commissioner (or ALJ) compares the claimant's current condition with the claimant's condition on the last date that she was found disabled. See 20 C.F.R. ยง 404.1594(b)(1), (b)(7), and (c)(1). This comparison makes it necessary for both an ALJ and a reviewing court ...


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