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Lobato v. Astrue

September 8, 2010


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on January 7, 2009, seeking review of the denial by the Social Security Commissioner ("Commissioner") of her application for a period of disability ("POD") and disability insurance benefits ("DIB"). The parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) on March 11, 2009. The parties filed a Joint Stipulation on September 9, 2009 ("Joint Stip."), in which: plaintiff seeks an order reversing the Commissioner's decision and finding that plaintiff is disabled and entitled to benefits, or in the alternative, remanding the case for a new administrative hearing; and defendant requests that the Commissioner's decision be affirmed. The Court has taken the parties' Joint Stipulation under submission without oral argument.


On October 31, 2006, plaintiff filed an application for POD and DIB, alleging disability beginning October 30, 2000. (Administrative Record ("A.R.") 81-85.) In the disability report accompanying her application, plaintiff alleged shoulder injury, learning disorder, stress, and dyslexia as impairments and asserted that she cannot work due to these impairments, because she cannot perform assigned tasks and cannot read and write. (A.R. 94.) At the reconsideration level, plaintiff additionally alleged that she suffers from depression, which commenced in April 2006. (A.R. 94, 135.)

The Commissioner denied plaintiff's claim for benefits initially and upon reconsideration. (A.R. 33-36, 42-45.) On July 3, 2008, plaintiff, who was represented by counsel, testified at a hearing before Administrative Law Judge Barry S. Brown ("ALJ"). (A.R. 15-30.) On October 8, 2008, the ALJ denied plaintiff's claim. (A.R. 4-13.) Subsequently, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (A.R. 1-3.)


In his October 8, 2008 decision, the ALJ found that plaintiff last met the insured status requirements of the Social Security Act on December 31, 2005, and that plaintiff had not engaged in substantial gainful activity during the period from her alleged onset date of October 30, 2000, through December 31, 2005, her date last insured ("DLI"). (A.R. 9.) The ALJ also found that, through her last insured date, plaintiff had the medically determinable impairments of "status post cervical sprain and status post left shoulder sprain (20 C.F.R. § 404.1520(c))." (Id.) The ALJ further found that, through her last insured date, plaintiff did not have an impairment or combination of impairments that significantly limited her ability to perform basic work related activities for 12 consecutive months, and therefore, she did not have a severe impairment or combination of impairments. (Id.) The ALJ found that plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were "not entirely credible prior to the date last insured." (A.R. 11.)

In assessing whether plaintiff's impairments were severe, the ALJ based his decision on a report by an orthopedic surgeon who performed a consultative examination, which indicated that plaintiff's "subjective complaints were not matched by any objective finding" and that "her MRI demonstrated normal findings with no significant pathology." (A.R. 11.) The ALJ also noted that plaintiff's treating physician classified her as disabled only until July 31, 2000. (Id.) The ALJ dismissed plaintiff's claim that she had functional limitations arising from mental health issues, because her treatment related to her alleged depression began after her last insured date. (A.R. 12.) Therefore, the ALJ concluded that plaintiff was not disabled, as defined by the Social Security Act, at any time from October 30, 2000, through December 31, 2005. (A.R. 13.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the record can constitute substantial evidence, only those "reasonably drawn from the record" will suffice. Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff frames her issues as follows: (1) whether the ALJ properly considered the treating physician's opinion regarding plaintiff's inability to read; (2) whether the ALJ properly considered plaintiff's testimony regarding her inability to read and made proper credibility findings; (3) whether the ALJ properly developed the record regarding plaintiff's inability to read and her special education; (4) whether the ALJ properly considered the type, dosage, and side effects of plaintiff's prescribed medications; and (5) whether the ALJ properly considered the severity ...

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