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Viramontes v. Astrue

August 11, 2010

SHARON E. VIRAMONTES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATION

Plaintiff, who is proceeding without counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying, in part, plaintiff's application for Disability Insurance Benefits under Title II of the Social Security Act ("Act").*fn1 In her motion for summary judgment, plaintiff principally contends that the Administrative Law Judge ("ALJ") in this case erred by finding that plaintiff's disability ceased as of August 24, 2004. (Dkt. No. 21.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 22.) Plaintiff filed a reply brief. (Dkt. No. 24.) For the reasons stated below, the court will recommend that this matter be remanded for further proceedings.

I. BACKGROUND

Plaintiff was born in 1964, has at least a high school level education, and previously worked as a food server.*fn2 (Administrative Transcript ("AT") 20.) On June 22, 2004, plaintiff filed an application for Disability Insurance Benefits ("DIB"), alleging a disability onset date of April 17, 2004. (See AT 40, 74.) Plaintiff alleged that she had impairments including bilateral carpal tunnel syndrome, an autoimmune disease, "lympho-leukopenia," drug-induced lupus, and arthritis throughout her body. (See AT 43.) Plaintiff had also had a severe reaction to a medication for pain called Celebrex, which was the cause of her autoimmune disease, and from which she has recovered.

The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 40-41.) Plaintiff filed a request for a hearing, and the ALJ held two hearings regarding plaintiff's claims. (AT 29, 58, 60, 65, 697-722.)

In a decision dated July 28, 2006, the ALJ issued a decision that was partially favorable to plaintiff, concluding that plaintiff was disabled from April 17, 2002, through August 23, 2004. (AT 29-35.) However, the ALJ found that plaintiff's disability had ceased as of August 24, 2004. (AT 35.) Plaintiff requested review by the Appeals Council, which affirmed the ALJ's finding that plaintiff's disability persisted from April 17, 2002, through at least August 23, 2004, but remanded the matter to the ALJ for further consideration of the date that plaintiff's disability ceased. (AT 43-45.)

On remand, the ALJ conducted another hearing at which plaintiff and a vocational expert testified. (AT 670-96.) The ALJ subsequently issued a decision that again found that plaintiff's disability ceased on August 24, 2004. (AT 14-21.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 6.)

II. ISSUE PRESENTED

Whether substantial evidence in the record supports the ALJ's determination that plaintiff's disability ceased on August 24, 2004. III. LEGAL STANDARDS Where the issue of continued disability or medical improvement is concerned, "a presumption of continuing disability arises" in the claimant's favor once that claimant has been found to be disabled. Bellamy v. Sec'y of Health & Human Servs., 755 F.2d 1380, 1381 (9th Cir. 1985) (citing Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983)). The Commissioner has the "burden of producing evidence sufficient to rebut [the] presumption of continuing disability." Id.; see also Murray, 722 F.2d at 500 ("The Secretary... has the burden to come forward with evidence of improvement."). However, a reviewing court will not set aside a decision to terminate benefits unless the determination is based on legal error or is not supported by substantial evidence in the record as a whole.*fn3 Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); accord Bellamy, 755 F.2d at 1381; Murray, 722 F.2d at 500.

Relevant here, a claimant's benefits may be terminated where the Commissioner produces substantial evidence that: "(A) there has been any medical improvement in the individual's impairment or combination of impairments (other than medical improvement which is not related to the individual's ability to work), and (B) the individual is now able to engage in substantial gainful activity." 42 U.S.C. § 423(f)(1). The applicable regulation defines "medical improvement" as follows:

Medical improvement is 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. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with your impairment(s)....

20 C.F.R. § 404.1594(b)(1).

The Commissioner evaluates whether a claimant continues to be entitled to DIB under an eight-part analytical framework, which consists of the following steps:

(1) Are you engaging in substantial gainful activity? If you are (and any applicable trial work period has been completed), we will find disability to have ended (see paragraph (d)(5) of this section).

(2) If you are not, do you have an impairment or combination of impairments which meets or equals the severity of an impairment listed in appendix 1 of this subpart? If you do, your disability will be found to continue.

(3) If you do not, has there been medical improvement as defined in paragraph (b)(1) of this section? If there has been medical improvement as shown by a decrease in medical severity, see step (4). If there has been no decrease in medical severity, there has been no medical improvement. (See step (5).)

(4) If there has been medical improvement, we must determine whether it is related to your ability to do work in accordance with paragraphs (b)(1) through (4) of this section; i.e., whether or not there has been an increase in the residual functional capacity based on the impairment(s) that was present at the time of the most recent favorable medical determination. If medical improvement is not related to your ...


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