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Cheri Barry v. Michael J. Astrue

January 18, 2011

CHERI BARRY, 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 AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY

PROCEEDINGS

On November 6, 2009, Cheri Barry ("Plaintiff" or "Claimant") filed a Complaint seeking review of the decision by the Commissioner of the Social Security Administration ("Commissioner") denying Plaintiff's application for disability benefits under Title XVI of the Social Security Act. On May 7, 2010, the Commissioner filed an Answer to the Complaint. On July 9, 2010, the parties filed a Joint Stipulation ("JS") setting forth their positions and the issues in dispute.

Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the undersigned Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision should be affirmed and the case dismissed with prejudice.

BACKGROUND

Plaintiff was born on February 8, 1960, and was 47 years old on her alleged disability onset date of October 1, 2007. (AR 147.) Plaintiff filed an application for Supplemental Security Income benefits on October 31, 2007. (AR 11, 147-51.) Plaintiff claims she is disabled due to lupus, problems in her neck and spine, chronic obstructive pulmonary disorder, "extreme chronic pain," and other impairments. (AR 164.) Plaintiff has not engaged in substantial gainful activity since at least October 31, 2007. (AR 13, 164.)

Plaintiff's claim was denied initially on March 21, 2008 (AR 63-67), and on reconsideration on August 29, 2008. (AR 72-77.) Plaintiff filed a timely request for hearing on October 13, 2008. (AR 79.) Plaintiff appeared with counsel and testified at a hearing held on August 11, 2009, before Administrative Law Judge ("ALJ") Helen E. Hesse. (AR 23-46.) The ALJ issued a decision denying benefits on August 19, 2009. (AR 8-21.) On September 15, 2009, Plaintiff filed a timely request for review of the ALJ's decision. (AR 6.) The Appeals Council denied review on September 22, 2009. (AR 1-3.) Plaintiff then commenced the present action.

DISPUTED ISSUES

As reflected in the Joint Stipulation, there are six disputed issues:

1. Whether the ALJ properly considered an examining physician's opinion;

2. Whether the ALJ properly evaluated a treating physician's opinion;

3. Whether the ALJ properly considered the severity of Plaintiff's fibromyalgia;

4. Whether the ALJ properly assessed Plaintiff's residual functional capacity;

5. Whether the ALJ posed a complete hypothetical question to the vocational expert; and

6. Whether the ALJ properly considered lay witness statements. (JS at 3.)

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 free of legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991) (ALJ's disability determination must be supported by substantial evidence and based on the proper legal standards).

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 quotation marks 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 the 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 supporting evidence.'" Robbins, 466 ...


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