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Turner v. Astrue

September 30, 2010

WANDA TURNER PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

I. SUMMARY

On July 16, 2009, plaintiff Wanda Turner ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; July 22, 2009 Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum and Opinion and Order of Remand because the Administrative Law Judge ("ALJ") erred in rejecting the opinion of plaintiff's treating physician.

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

On October 24, 2005, plaintiff filed an application for Disability Insurance Benefits. (Administrative Record ("AR") 13). Plaintiff asserted that she became disabled on November 9, 2004, due to multiple herniated discs in her neck and back and chronic pain. (AR 218, 221). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel), a medical expert, and a vocational expert on October 22, 2007 and January 5, 2009. (AR 25-88).

On February 26, 2009, the ALJ determined that plaintiff was not disabled through June 30, 2007, the date last insured. (AR 13-24). Specifically, the ALJ found: (1) plaintiff suffered from pain in her neck and back secondary to a severe impairment in the musculoskeletal system (AR 15); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 18); (18) plaintiff retained the residual functional capacity to perform medium work with some physical and mental limitations (AR 19);*fn1 and (4) plaintiff could perform her past relevant work as a bank teller or home care provider (AR 23).

The Appeals Council denied plaintiff's application for review. (AR 1-3).

III. APPLICABLE LEGAL STANDARDS

A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit her ability to work? If not, the claimant is not ...


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