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Silvera v. Astrue

July 29, 2010

CHARLAIN SILVERA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

I. SUMMARY

On March 27, 2009, plaintiff Charlain Silvera ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; March 31, 2009 Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum Opinion and Order of Remand. In light of the failure of the Administrative Law Judge ("ALJ") to ask the vocational expert whether her testimony conflicted with the Dictionary of Occupational Titles and, if so, whether there was a reasonable explanation for the conflict, this Court cannot determine whether the ALJ properly relied upon such expert's testimony and whether substantial evidence supports the ALJ's finding that plaintiff could perform alternative work.

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

On November 19, 2004, and February 10, 2005, respectively, plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income benefits. (Administrative Record ("AR") 12, 119-32). Plaintiff asserted that she became disabled on December 21, 2001, due to depression, panic attacks, carpal tunnel syndrome, degenerative disk disease, and bone spurs in the neck. (AR 138-39). The ALJ examined the medical record and heard testimony from plaintiff, who was represented by counsel, on July 22, 2008. (AR 747-812).

On September 22, 2008, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 12-22). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: obesity, status post left and right carpal tunnel releases, C2-5 degenerative disc disease, dysthymia, and panic disorder (AR 15); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 15); (3) plaintiff retained the residual functional capacity to perform sedentary work with certain limitations (AR 15);*fn1 (4) plaintiff could not perform her past relevant work (AR 20); (5) there are jobs that exist in significant numbers in the national economy that plaintiff could perform, specifically dowel inspector, table worker, and touch up screener (AR 21); and (6) plaintiff's allegations regarding her limitations were not totally credible. (AR 16, 19-20).

The Appeals Council denied plaintiff's application for review. (AR 4-6).

III. APPLICABLE LEGAL STANDARDS

A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit her ability to work? If not, the claimant is not ...


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