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Francia v. Astrue

November 3, 2010


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


Plaintiff filed a Complaint on October 15, 2009, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's claim for a period of disability and disability insurance benefits ("DIB"). On November 18, 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 July 28, 2010, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and defendant requests that the Commissioner's decision be affirmed. The Court has taken the parties' Joint Stipulation under submission without oral argument.


Plaintiff filed an application for a period of disability and DIB on December 10, 2002. (Administrative Record ("A.R.") 48-50.) Plaintiff claims to have been disabled since December 15, 2001, due to thoracic outlet compression syndrome, impingement syndrome, and possible carpal tunnel syndrome.*fn1 (A.R. 13-14, 53.) Plaintiff has past relevant work experience as a licensed vocational nurse, certified nursing assistant, and cashier/hostess.*fn2 (A.R. 54, 848.)

After the Commissioner denied plaintiff's claims initially and upon reconsideration, plaintiff requested a hearing. (A.R. 37-40, 43-47.) On April 21, 2004, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Sally Reason ("ALJ Reason"). (A.R. 431-59.) On July 15, 2004, ALJ Reason denied plaintiff's claims (A.R. 13-20), and the Appeals Council subsequently denied plaintiff's request for review of ALJ Reason's decision (A.R. 5-9). On October 14, 2005, plaintiff sought review in this Court, which remanded the case for further proceedings in a March 26, 2007 Order ("Remand Order").*fn3 (A.R. 605-34.)

On July 13, 2007, the Appeals Council effectuated the Court's Remand Order and remanded the matter to an administrative law judge for a supplemental hearing, which occurred on October 1, 2007. (A.R. 642, 844-54.) At the hearing, plaintiff again testified before ALJ Reason. Ronald Hatakeyama, a vocational expert, also testified. (A.R. 855-58.) On November 29, 2007, ALJ Reason denied plaintiff's claims. (A.R. 529-40.)

Subsequently, the Appeals Council, in its May 28, 2008 Order, assumed jurisdiction of the case and remanded the matter for further proceedings. (A.R. 668-70.) The Appeals Council based its remand on "a discrepancy in [ALJ Reason]'s finding that [plaintiff] can return to [her] past relevant work as a hostess." (A.R. 668-70.)

On October 8, 2008, plaintiff testified at a hearing before Administrative Law Judge Zane A. Lang (the "ALJ"). (A.R. 806-16, 827-28, 831-33.) Medical expert Michael Stuart Gurvey, M.D., and vocational expert Gregory Jones also testified. (A.R. 804-06, 816-40.) On January 15, 2009, the ALJ denied plaintiff's claims. (A.R. 494-505.) That decision is now at issue in this action.


The ALJ found that plaintiff has not engaged in substantial gainful activity since December 5, 2001, the alleged onset date of her claimed disability. (A.R. 495.) The ALJ further found that, at the time of the decision, plaintiff was a "younger individual" with a "post secondary education." (A.R. 495, 503.) The ALJ determined that plaintiff has the following severe impairments: thoracic outlet syndrome, status post resections of the ribs, bilateral shoulder impingement syndrome, and possible bilateral carpal tunnel syndrome.*fn4 (Id.) The ALJ also determined that plaintiff does not have an impairment or combination of impairments that meets or equals in severity any impairment listed in Appendix 1, Subpart P, Regulations No. 4. (A.R. 496.) Additionally, the ALJ found that plaintiff's allegations regarding her pain and limitations were not entirely credible. (A.R. 497-98, 501-02, 504.)

The ALJ determined that plaintiff has the residual functional capacity ("RFC") for:

work with limitations to lifting/carrying below shoulder level only 10 pounds occasionally and less than 10 pounds frequently; no weights above shoulder level or overhead bilaterally, and that pushing and pulling are limited to the below shoulder level capacities. Additionally, [plaintiff] is limited to occasionally reaching, handling and fingering in all directions (no repetitive fingering such as keyboarding for more than 30 minutes at a time without a 5 minute break); occasionally crawling; no climbing of ladders, ropes or scaffolds; and no work that involves heavy vibrations, such as with jackhammers.

(A.R. 496.)

The ALJ concluded that plaintiff was unable to perform her past relevant work. (A.R. 503.) However, having considered plaintiff's age, education, work experience, and medical limitations, as well as the testimony of the vocational expert, the ALJ found that jobs exist in the national economy that plaintiff could perform, including those of a call out operator and a surveillance system monitor. (A.R. 503-04.) Accordingly, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act through the date of his decision. (A.R. 505.)


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 (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 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff makes the following four claims: (1) the ALJ failed to give appropriate weight to the opinion of plaintiff's treating doctor and the diagnosis of plaintiff's chiropractor; (2) the ALJ improperly evaluated plaintiff's credibility; (3) the ALJ improperly assessed plaintiff's RFC; and (4) the ALJ improperly found that plaintiff can ...

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