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Green v. Astrue

August 5, 2010


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's applications for disability insurance benefits and supplemental security income benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. [See JS 2]. In a May 24, 2006 written hearing decision that constitutes the Commissioner's final decision in this case, an administrative law judge (the "ALJ") found that plaintiff had a severe impairments consisting of a generalized anxiety disorder with panic attacks. [JS 2; Administrative Record ("AR") 17]. The ALJ found that plaintiff retained the residual functional capacity ("RFC") for work at all exertional levels, and that she had non-exertional limitations restricting her to moderately complex tasks in a habituated setting, with no responsibility for the safety of others, no rapid pace work, and no operation of hazardous machinery (but she could be around hazardous machinery). [AR 18]. The ALJ concluded that although plaintiff's RFC precluded her from performing her past relevant work as a school bus driver, she could perform alternative jobs existing in significant numbers in the national economy. [AR 22].

Statement of Disputed Issues

The disputed issues are whether: (1) the Appeals Council properly considered the additional evidence from plaintiff's treating therapist; (2) the ALJ properly evaluated the credibility of plaintiff's subjective complaints; (3) the ALJ properly evaluated the written statement of a third-party lay witness; and (4) the ALJ properly considered the type, dosage, and side effects of plaintiff's prescribed medications. [JS 2-3].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Appeal Council's consideration of additional evidence Plaintiff contends that the Appeals Council erred by failing specifically to "consider, discuss, analyze or even mention" a "Work Capacity Evaluation" form signed by Gabriele E. Roberts, LMFT (licensed marriage and family therapist) on July 10, 2006. [JS 3-8].

Plaintiff submitted Roberts's evaluation along with his request for review to the Appeals Council, which denied plaintiff's request in a written "Notice of Appeals Council Action" ("Notice") dated September 15, 2006. [AR 7-19]. The Notice states that the Appeals Council "considered the additional evidence listed on the enclosed Order of Appeals Council," but that "this information does not provide a basis for changing the [ALJ's] decision." [AR 7-8]. The order lists Roberts's "check-the-box" evaluation form, which was made a part of the record. [AR 10; see AR 320-321].

The Commissioner's regulations state that

[i]f new and material evidence is submitted [to the Appeals Council], the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. . . . It will then review the case if it finds that the administrative law judge's action, ...

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