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Nixon v. Astrue

September 14, 2010

RHONDA NIXON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff filed a Complaint on March 5, 2009, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On April 8, 2009, the parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on November 23, 2009 ("Joint Stip.), in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, in the alternative, remanding the matter for further administrative proceedings; and defendant seeks an order affirming the Commissioner's decision. The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

On November 17, 2004, plaintiff filed a protective application for a period of disability and DIB, alleging a disability onset date of January 17, 2003, due to difficulties with concentration and memory, a brain aneurysm, mood swings, advanced osteoporosis, and headaches. (Administrative Record ("A.R.") 19, 28, 45, 48.) Plaintiff has past relevant work as a bookkeeper. (A.R. 49.)

The Commissioner denied plaintiff's application initially and upon reconsideration. (A.R. 19-25, 28-32.) On June 16, 2006, plaintiff, who was represented by counsel, testified at a hearing before Administrative Law Judge F. Keith Varni ("ALJ"). (A.R. 112-26.) On July 24, 2006, the ALJ denied plaintiff's claim. (A.R. 10-13.) The Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision. (A.R. 3-5.)

On January 11, 2007, Plaintiff filed a civil action in this district, in Case No. EDCV 06-1425-MAN. (A.R. 165.) On March 31, 2008, this Court reversed the Commissioner on the basis that the ALJ failed to develop the record adequately regarding plaintiff's medical records from Kaiser and to consider lay witness testimony. (A.R. 165-73.) This Court remanded the matter for further proceedings consistent with its decision. (AR 173).

While the foregoing civil action was pending in this Court, on January 17, 2007, plaintiff filed a subsequent application for a period of disability, DIB, and SSI, alleging a disability onset date of March 7, 2003, due to memory problems, severe headaches, and focus problems. (A.R. 161, 283-84, 329.) The Commissioner denied the second application initially and upon reconsideration. (A.R. 283-84, 298-308.) On June 17, 2008, the Appeals Council noted this Court's remand order and directed the ALJ to associate the two Title II (period of disability and DIB) claims and issue a new decision on the associated claims, and further, to consider whether to consolidate the SSI claim filed on January 17, 2007, with the DIB claims. (A.R. 161.)

On November 13, 2008, plaintiff, who was represented by counsel, testified before the ALJ. (A.R. 261-77.) Joseph Mooney testified as a vocational expert at the hearing. (A.R. 277-79.) On February 4, 2009, the ALJ issued a written decision that: consolidated the DIB and SSI claims; and denied plaintiff's consolidated claims. (A.R. 134-41.) The Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision. (Joint Stip. at 2.)

SUMMARY OF ADMINISTRATIVE DECISION

The ALJ found that plaintiff did not engage in substantial gainful activity from March 7, 2003, the alleged onset date, through the date of the decision. (A.R. 136.) The ALJ determined that plaintiff had the following severe impairments: brain aneurysm, status post clipping; mixed migraine and muscle tension headaches; cognitive disorder, not otherwise specified; and depressive disorder, not otherwise specified. (A.R. 136-37.) He concluded that these impairments did not meet or equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (A.R. 137.)

The ALJ determined that plaintiff had the residual functional capacity ("RFC") to:

perform light and medium work as defined in 20 CFR 404.1567 and 416.967 except lifting or carrying more than forth [sic] pounds occasionally, or twenty pounds frequently and routine, repetitive entry level, minimally stressful work, requiring no contact with the general public and superficial interpersonal contact with co-workers and supervisors.

(A.R. 138.) The ALJ found that plaintiff was unable to perform her past relevant work. (A.R. 140.)

Having considered plaintiff's age, education, work experience, and RFC, as well as in reliance on testimony from the vocational expert, the ALJ found that jobs exist in the national economy that plaintiff can perform, including those of housekeeper, cleaner, packer, and unskilled office aide. (A.R. 140-41.) Accordingly, the ALJ concluded that plaintiff was not disabled, as defined in the Social Security Act, from March 7, 2003, the alleged onset date, through the date of his decision. (A.R. 141.)

STANDARD OF REVIEW

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)(citation omitted).

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). "Where the evidence as a whole can support either a grant or a denial, [a federal court] may not substitute [its] judgment for the ALJ's." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009)(citation and internal punctuation omitted).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Tommasetti v. Astrue, 553 F.3d 1035, 1038 (9th Cir. 2008); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004)("if evidence exists to support more than one rational interpretation, we must defer to the Commissioner's decision"). 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 ...


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