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Fischman v. Astrue

February 3, 2010


The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge


Plaintiff Katie N. Fischman filed a complaint on November 24, 2008, seeking review of the Commissioner's decision denying her application for disability benefits. On April 27, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on July 1, 2009.


On April 27, 2005, plaintiff filed an application for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, claiming an inability to work since October 30, 2000, due to "venous thrombosis caused from a blood condition. Legally blind in the left eye, minus 8 in the right eye." Certified Administrative Record ("A.R.") 93-97, 118. The plaintiff's application was initially denied on August 18, 2005, and was denied again on December 2, 2005, following reconsideration. A.R. 53-64. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Sally C. Reason ("the ALJ") on May 31, 2006. A.R. 65-66, 228-47. On June 28, 2006, the ALJ issued a decision finding plaintiff is not disabled. A.R. 37-45. The plaintiff appealed this decision to the Appeals Council, which vacated the ALJ's decision and remanded for further proceedings on November 24, 2007. A.R. 49-52, 80, 84-88.

The ALJ then conducted another administrative hearing on March 10, 2008. A.R. 248-63. On April 16, 2008, the ALJ issued a new decision again finding plaintiff is not disabled. A.R. 15-25. The plaintiff appealed the decision to the Appeals Council, which denied review on September 26, 2008. A.R. 7-14, 221-27.



The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the decision denying plaintiff disability benefits to determine if the Commissioner's findings are supported by substantial evidence and whether he used the proper legal standards in reaching his decision. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). The claimant is "disabled" for the purpose of receiving benefits under the Act if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).

The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 404.1520. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting her from performing basic work activities. 20 C.F.R. § 404.1520(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 404.1520(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform her past work. 20 C.F.R. § 404.1520(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1520(g).

Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity between her alleged onset date of October 30, 2000, and her date last insured of December 31, 2005. (Step One). The ALJ then found plaintiff has the following severe impairments: "blindness in the left eye with a history of central retinal vein occlusion, and retinal degeneration in both eyes" (Step Two); however, she does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). The ALJ further determined plaintiff cannot perform her past relevant work as a travel agent or travel agency manager. (Step Four). Finally, the ALJ concluded plaintiff can perform a significant number of jobs in the national economy; therefore, she is not disabled. (Step Five).


A claimant's residual functional capacity ("RFC") is what she can still do despite her physical, mental, non-exertional, and other limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see also Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (RFC is "a summary of what the claimant is capable of doing (for example, how much weight he can lift)."). Here, the ALJ found plaintiff has the RFC "to perform a full range of work at all exertional levels but with the following non-exertional limitations: no work requiring good binocular vision, good depth perception, or full peripheral vision." A.R. 21. However, plaintiff contends this finding, as well as the Step Five determination, are not supported by substantial evidence because the ALJ erroneously concluded she was not a credible witness and failed to properly consider the opinion of her treating physician.

The plaintiff testified at the administrative hearing that she is unable to work because every time she reads "a little bit" her "eyes go" or blur and she experiences "severe pain," and then plaintiff has a panic attack. A.R. 231, 236, 239-40, 243, 260. The plaintiff explained she cannot do paperwork or computer work and cannot read for any length of time --- no more than a couple of paragraphs to a page --before she experiences blurriness and eye pain. A.R. 233-35. Once the eye pain starts, plaintiff testified she gets "a nasal drip" and then "start[s] to get really nervous because the pain can be really bad" and she feels as if she is going to go blind. A.R. 235-36.

Once a claimant has presented objective evidence that she suffers from an impairment that could cause pain or other non-exertional limitations,*fn1 the ALJ may not discredit the claimant's testimony "solely because the degree of pain alleged by the claimant is not supported by objective medical evidence." Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). Thus, if the ALJ finds the claimant's subjective complaints are not credible, she "'must provide specific, cogent reasons for the disbelief.'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). Furthermore, if there is medical evidence establishing an objective basis for some degree of pain and related symptoms, and no evidence affirmatively suggesting that the claimant is ...

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