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Penny R. Derreja v. Michael J. Astrue

March 22, 2011

PENNY R. DERREJA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Income Benefits ("DIB") under Title II of the Social Security Act ("Act").*fn1 In her motion for summary judgment, plaintiff contends that the administrative law judge in this case (the "ALJ"), erred by: (1) failing to credit plaintiff's own testimony concerning the nature and extent of her functional limitations; (2) improperly assessing plaintiff's residual functional capacity ("RFC") and, therefore, failing to credit the testimony of the vocational expert ("VE") in response to a hypothetical which purportedly reflected plaintiff's actual functional limitations; and (3) failing to ask the VE whether his testimony was consistent with the Dictionary of Occupational Titles ("DOT") before relying on his testimony. (See Pl.'s Mot. for Summ. J. ("Pl.'s Motion") at 1, Dkt. No. 22.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 25.)

For the reasons discussed below, the court grants plaintiff's motion for summary judgment in part, denies the Commissioner's cross-motion for summary judgment, and remands this matter for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND*fn2

Plaintiff was 45 years old at the time she filed her DIB application. (See Administrative Transcript ("AT") 114.) She had been self-employed, working as a child care provider from approximately 1989 until May 30, 2006. (AT 116.) Plaintiff claims to have stopped working as a child care provider on May 30, 2006, because of the chronic pain caused by fibromyalgia and degenerative disk disease in her neck, back, and knees. (Pl.'s Motion at 8.)

A. Procedural Background

On June 14, 2006, plaintiff filed an application for Disability Insurance Benefits, alleging a disability onset date of May 30, 2006. (AT 121.) The Social Security Administration ("SSA") denied plaintiff's application initially and upon reconsideration. (AT 49, 53.) Plaintiff filed a timely request for a hearing, and the ALJ conducted a hearing on August 4, 2008. (See AT 19-42.) Plaintiff testified at the hearing where she was represented by counsel. (See id.) David M. Dettmer, a vocational expert, was also present and testified at the hearing. (See id.)

In a decision dated December 30, 2008, the ALJ determined plaintiff was not disabled.*fn3 (AT 12, 16.) In denying plaintiff's application, the ALJ found that plaintiff could return to her past work as a child care provider because the performance of work-related activities was not precluded by plaintiff's RFC. (AT 17.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1.)

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since May 30, 2006, the alleged onset date. (AT 14.) At step two, the ALJ concluded that plaintiff had the following severe impairments: fibromyalgia, osteoarthritis, and degenerative disc disease. (Id.) At step three, the ALJ determined that none of plaintiff's severe impairments met or medically equaled an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. (Id.)

The ALJ further determined that plaintiff had the RFC to "perform less than the full range of light level work."*fn4 (AT 15.) Specifically, the ALJ found that plaintiff could: lift and carry 10 pounds, sit for six hours in an eight hour workday, stand/walk for six hours in an eight hour workday, with occasional postural limitations and never climbing ladders/ropes/scaffolds, and limited reaching in all directions (including overhead), environmental limitations to include avoiding concentrated exposure to extreme cold, and hazards such as machinery and heights. (Id.) In assessing plaintiff's RFC, the ALJ determined that plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not credible "to the extent they [were] inconsistent with the above residual functional capacity assessment." (AT 17.)

Having assessed plaintiff's RFC, the ALJ found at step four that plaintiff is capable of performing her past relevant work as a day care center worker. (Id.) Based on vocational expert testimony, the ALJ found that "[t]his work does not require the performance of work-related activities precluded by the claimant's residual functional capacity." (Id.) Because of the finding at step four, the ALJ was not required to proceed to step five of the inquiry. However, based on the testimony of the vocational expert, the ALJ continued on to find, at step five, that other jobs exist in the regional economy which claimant could perform, including the positions of office helper, cashier, and order clerk. (AT 17-18.)

II. ISSUES PRESENTED

Plaintiff presents three issues for review. First, plaintiff argues that the ALJ failed to fully credit the plaintiff's testimony as to the nature and extent of her functional limitations (i.e., plaintiff's testimony regarding subjective pain and symptoms), which resulted in an inaccurate RFC. (See Pl.'s Motion at 12.) Second, plaintiff contends that because the ALJ improperly weighed plaintiff's testimony regarding her pain and functional limitations, the ALJ failed to properly credit the VE's testimony in response to a hypothetical question posed by plaintiff that plaintiff contends accurately reflected plaintiff's limitations. (Id. at 18-19.) Finally, plaintiff argues that the ALJ unjustifiably relied on the testimony of the VE because the ALJ failed to ask the VE whether his testimony was consistent with the DOT. (Id. at 19.)

III. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039. Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. ยง 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)); see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch ...


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