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Berry v. Astrue

October 4, 2010

JANET BERRY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Titles XVI and II, respectively, of the Social Security Act ("Act"). For the reasons that follow, Plaintiff's Motion for Remand is granted in part, the Commissioner's Cross Motion for Summary Judgment is denied, and this matter is remanded to the ALJ for further findings as directed in this opinion. The Clerk is directed to enter judgment for plaintiff.

BACKGROUND

Plaintiff, born April 25, 1952, applied on March 19 and April 9, 2004 for disability benefits. (Tr. at 99, 65.) Plaintiff alleged she was unable to work due to poor vision, asthma, arthritis, knee problems, and tremors. (Tr. at 93, 112, 137.) In a decision dated May 11, 2005, ALJ Mark C. Ramsey determined that plaintiff was not disabled. (Id. at 65-73.) Upon review, the Appeals Council remanded the case and two hearings were held on November 21, 2006 and January 11, 2007. (Id. at 97-98, 392-436, 437-469.) The ALJ issued another decision on March 1, 2007, determining that plaintiff was not disabled, and the Appeals Council denied review. (Id. at 29-40.) The March, 2007 decision of the ALJ therefore constitutes the final decision of the Commissioner. In this decision, ALJ Ramsey made the following findings:*fn1

1. The claimant met the insured status requirements of the Social Security Act through December 31, 2006.

2. The claimant has not engaged in substantial gainful activity since October 30, 2002, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).

3. The claimant has the following severe combination of impairments: osteoarthritis of the knees, retinitis pigmentosa with peripheral and manacular involvement and myopic astigmatism (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to lift 20 pounds occasionally and 10 pounds frequently, walk/stand six hours, sit six hours, occasionally perform postural activities (these are supported by her right knee osteoarthritis, giving her some benefit of doubt, and given her daily activities as identified below), avoid jobs requiring good visual acuity, and avoid driving, working at heights and around moving machinery (these are supported by her retinitis pigmentosa with peripheral and manacular involvement and myopic astigmatism coupled with her partially credible vision complaints), and she has no manipulative, communicative, mental, or other visual or environmental limitations.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on April 25, 1952 and was 50 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).

11. The claimant has not been under a disability, as defined in the Social Security Act, from October 30, 2002 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. at 29-40.)

ISSUES PRESENTED

Plaintiff has raised the following issues: A. Whether the ALJ Erred in Failing to Include Plaintiff's Obesity as a Severe Impairment at Step Two; B. Whether the Commissioner Failed to Develop the Record by 1. Rejecting the Additional Evidence from Plaintiff's Treating Retinal Specialist Without Articulating a Legitimate Basis; 2. Failing to Remand Plaintiff's Case so that the Psychogenic Basis of Her Tremors Could be Assessed; 3. Failing to Develop the Record in Regard to Plaintiff's Physical Residual Functional Capacity; and C. Whether the ALJ Failed to Reference Third Party Testimony.

LEGAL STANDARDS

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. ...


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