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Tina Carney v. Michael J. Astrue

December 6, 2010

TINA CARNEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER PROCEEDINGS

PROCEEDINGS

On November 5, 2009, Tina Carney ("Plaintiff" or "Claimant") filed a complaint seeking review of the decision by the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for Period of Disability and Disability Insurance benefits. The Commissioner filed an Answer on May 7, 2010. On July 9, 2010, the parties filed a Joint Stipulation ("JS"). The matter is now ready for decision.

Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision should be reversed and the case remanded for further proceedings in accordance with law and with this Memorandum Opinion and Order.

BACKGROUND

Plaintiff is a 39 year old female who was found to have the medically determinable severe impairments of chronic fatigue syndrome/fibromyalgia, possible multiple sclerosis, and situational depression. (AR 10.) Plaintiff has not engaged in substantial gainful activity since April 24, 2006, the alleged onset date. (AR 10.)

Plaintiff's claim was denied initially on May 27, 2007, and on reconsideration on December 26, 2007. (AR 8.) She filed a timely request for hearing, which was held before Administrative Law Judge ("ALJ") Mason D. Harrell, Jr., on March 4, 2009, in San Bernardino, California. (AR 8-16 .) Claimant appeared and testified. (AR 8.) Medical expert Samuel Landau and vocational expert Corinne J. Porter also appeared and testified. (AR 8.)

The ALJ issued an unfavorable decision on July 27, 2009. (AR 8-16.) Plaintiff filed a Request for Review of the Hearing Decision, and the Appeals Council denied review on October 6, 2009. (AR 1-3.)

DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues that Plaintiff raises as grounds for reversal are as follows:

1. Whether the ALJ properly held that Plaintiff could perform the jobs of charge account clerk and pari-mutuel ticket checker.

2. Whether the ALJ properly considered the lay witness testimony.

3. Whether the ALJ properly considered the treating physician's opinion. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "'more than a mere scintilla'. . . but less than a preponderance." Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (internal quotations and citation omitted). This Court must review the record as a whole and consider adverse as well as supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). "However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of ...


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