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Teri Harral v. Michael J. Astrue

March 29, 2011


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


Plaintiff 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 (Dkt. No. 22.) In her motion for summary judgment, plaintiff contends that the administrative law judge (the "ALJ"), erred by failing to properly:

(1) assess plaintiff's residual functional capacity ("RFC"); and (2) question the vocational expert. The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 23.)

For the reasons stated 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.


Plaintiff was 50 years old at the time of the ALJ's decision denying plaintiff's application for disability benefits. (See Administrative Transcript ("AT") 50.) Plaintiff had completed high school, had some college level education, and had obtained a real estate license through the California Department of Real Estate. (AT 34-35, 50.) In terms of previous employment, plaintiff had worked as a loan specialist for eight years, an administrative secretary assistant for one year, an appointment scheduler for one year, and an owner of a juice bar for three years. (AT 59-60.) In addition, plaintiff had worked for three years as a realtor. (AT 38.)

Generally, plaintiff alleges pain in both elbows, arms, and hands resulting from carpal tunnel syndrome and bilateral epicondylitis.*fn3 (See Pl.'s Mot. for Summ. J. ("Pl.'s Motion") at 1.)

A. Procedural Background

On March 14, 2006, plaintiff applied for Disability Insurance Benefits. (AT 81.)

The Social Security Administration denied plaintiff's applications initially and upon reconsideration. (AT 81-82.) Plaintiff filed a request for a hearing. (AT 97.) The ALJ conducted two hearings in this case, although the first was quite abbreviated. Plaintiff, who was represented by counsel, testified at both hearings. The first hearing was held on February 28, 2008, wherein plaintiff testified regarding her address, education, prior work experience, and relevant medical treatment. (AT 33-43.) However, during plaintiff's testimony the ALJ noted that the medical records before him were not complete. Accordingly, the ALJ continued the matter and rescheduled the hearing to allow plaintiff time to supplement the administrative record. (AT 43.) The second hearing was held on September 17, 2008, at which time all records had been received. (See AT 47-48.) Additionally, a vocational expert ("VE") testified at the September 17, 2008 hearing.

In a decision dated November 28, 2008, the ALJ determined that plaintiff was not disabled.*fn4 (AT 8-14.) In reliance on the VE's testimony, the ALJ found that plaintiff was capable of performing past relevant work. (AT 13.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1.) Plaintiff subsequently filed this action.

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 concluded that plaintiff had not engaged in substantial gainful activity since August 15, 2005, the alleged date of onset. (AT 10.) At step two, the ALJ concluded that plaintiff had the following "severe" impairment: bilateral epicondylitis. (AT 10.) At step three, the ALJ determined that plaintiff's impairment did not meet or medically equal any impairment listed in the applicable regulations. (AT 11.)

The ALJ further found that plaintiff has the RFC to perform light work.*fn5 (Id.) Specifically, the ALJ found that plaintiff is able to: lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently; stand/walk for eight hours in an eight-hour day with normal breaks; sit for eight hours in an eight-hour day with normal breaks; frequently reach below shoulder level, grasp and bilaterally finger; and occasionally work above shoulder level and is precluded from crawling and climbing ladders, ropes and scaffolding. (AT 13.) In assessing plaintiff's RFC, the ALJ found that plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not credible "to the extent they are inconsistent with the above residual functional capacity assessment." (AT 12.) Further, the ALJ noted that he found certain medical opinion evidence persuasive, namely a 2007 medical report produced by treating physician Dr. William Snider, and a 2006 RFC assessment by a State agency non-examining physician. (AT 12-13.)

Having assessed plaintiff's RFC, the ALJ determined at step four that plaintiff is capable of performing her past relevant work as a loan specialist, a receptionist, an appointment scheduler, a small business owner, a realtor, and an administrative assistant. (AT 13.) Based on the VE's 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 did not reach step five of the inquiry.


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); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (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)); accord Valentine, 574 F.3d at 690 (citing Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 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; 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 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).


As noted above, plaintiff alleges that the ALJ erred by failing to properly:

(1) assess plaintiff's RFC; and (2) question the vocational expert. The undersigned notes at the outset that the first issue raised by plaintiff, the ALJ's determination of plaintiff's RFC, actually alleges a number of ...

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