The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), and her protectively filed application for Supplemental Security Income ("SSI") under Title XVI of the Act.*fn2 (Dkt. No. 24.) In her motion for summary judgment, plaintiff contends that the Administrative Law Judge ("ALJ") erred by: (1) not finding that plaintiff's diagnosed condition of ciliary neuralgia, which may be used to refer to the occurrence of "cluster headaches," was a "severe" impairment at step two of the applicable five-step analysis; (2) improperly rejecting the opinion of one of plaintiff's treating physicians, Dr. Shalini Gupta, regarding the disabling nature of plaintiff's ciliary neuralgia, and otherwise failing to develop the record in this regard; (3) failing to credit plaintiff's testimony regarding the disabling nature of her impairments; (4) rejecting the statements of a lay witness, plaintiff's boyfriend, without providing reasons for doing so; (5) failing to credit the testimony of a vocational expert who testified regarding plaintiff's ability to work in response to plaintiff's counsel's hypothetical questions; and (6) relying on the vocational expert's improper testimony regarding available jobs in the economy. The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 28.)
For the reasons stated below, the court will grant plaintiff's motion for summary judgment in part, deny the Commissioner's cross-motion for summary judgment, and remand this matter for further proceedings.
Plaintiff was 44 years old at the time of the ALJ's decision denying DIB and SSI benefits and she has a high school level education. (Administrative Transcript ("AT") 17.) She previously worked: at a food store or market operating a pasta machine; as a receptionist; an office manager; a mobile home park assistant manager; and a telemarketer. (See AT 16, 46, 80-81.) In February of 2005, plaintiff visited an emergency room and reported that approximately two weeks prior she had felt her nose "pop" while she was manipulating pasta dough at work. (AT 46, 229.) She reported severe pain, dizziness, and anxiety. Over the following years, plaintiff visited health care providers frequently with respect to her physical conditions including ciliary neuralgia, and mental conditions including depression and bipolar disorder.
Plaintiff filed an application for DIB, with a protective application for SSI benefits, alleging a disability onset date of February 10, 2005. (AT 25-30.) The Social Security Administration denied plaintiff's applications initially and upon reconsideration. (AT 90-99, 103-09.) Plaintiff filed a request for a hearing, and the ALJ conducted a hearing regarding plaintiff's claims on September 28, 2008. (AT 40-90, 110.) Plaintiff, who was represented by counsel at the hearing, testified at the hearing. A vocational expert also testified at the hearing. Plaintiff's boyfriend, Emery Young, also provided a third party witness statements regarding plaintiff's functional limitations. (AT 137-43.)
In a decision dated December 12, 2008, the ALJ denied plaintiff's application. (AT 10-18.) He determined that plaintiff could perform her past work as a machine operator and that, alternatively, plaintiff could perform jobs that exist in significant numbers in the national economy.*fn4 (AT 16-18.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1-3.) Plaintiff subsequently filed this action.
B. Summary of the ALJ's Findings
The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since February 10, 2005, the alleged date of onset. (AT 12.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: depression, anxiety, and a pain disorder. (AT 13.) The ALJ stated the following: "The claimant reported that she has daily facial pain which prevents her from doing activities and is exacerbated by lifting and bending. She also noted that she has become progressively sad, depressed, discouraged and anxious concerning her future." (AT 13.) The ALJ did not expressly resolve whether plaintiff's diagnosed condition of ciliary neuralgia was "severe" within the meaning of the Act. At step three, he determined that plaintiff's impairments, whether alone or in combination, did not meet or medically equal any impairment listed in the applicable regulations. (AT 13.)
The ALJ further determined that prior plaintiff had the residual functional capacity ("RFC") to perform work at "all exertional levels" and "is able to perform simple tasks that involve limited public contact." (AT 13.) In arriving at this RFC, the ALJ considered, but did not adopt, the medical opinion of plaintiff's treating physician, Dr. Gupta, who had opined that plaintiff's diagnosed condition of ciliary neuralgia was disabling to plaintiff. (See AT 15-16, 336.) The ALJ also found that plaintiff was not a credible witness, stating that plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent that they are inconsistent with the above residual functional capacity assessment." (AT 15.)
At step four, the ALJ found that, considering plaintiff's RFC and testimony of the vocational expert, plaintiff was capable of performing past relevant work as a machine operator "as she performed it and as it is generally performed in the national economy." (AT 16.) As an alternative finding, the ALJ concluded at step five that "there are jobs that exist in significant numbers in the national economy that [plaintiff] can perform." (AT 17.) Accordingly, the ALJ found that plaintiff was not disabled.
The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690 (citing Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support 5 either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)); see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational ...