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Debra Phillips v. Michael J. Astrue

March 31, 2011

DEBRA PHILLIPS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Debra Phillips seeks judicial review of the Commissioner's final decision denying her application for Social Security Disability Insurance ("SSDI") benefits. For the reasons set forth below, the final decision of the Commissioner is affirmed.

I. Background

Plaintiff was born on January 8, 1954 and was 55 years old at the time of the administrative hearing. (AR 15, 118.) She has completed one year of college and has work experience as a school secretary. (AR 133, 135.) Plaintiff filed her application for SSDI benefits on November 13, 2007, alleging disability as of January 30, 2001 due to carpal tunnel syndrome, essential hypertension, back pain, discogenic and degenerative disorders of the back, arthritis, migraines and depression. (Administrative Record ("AR") 118, 124.)

The current application was denied initially on May 19, 2008 and upon reconsideration on July 18, 2008. (AR 59-62, 69-73). An administrative hearing was held on August 3, 2009 before Administrative Law Judge ("ALJ") Michael D. Radensky. Plaintiff, who was represented by an attorney, testified, as did a vocational expert. (AR 20-43.)

On October 13, 2009, ALJ Radensky denied Plaintiff's application for benefits. (AR 10-17.) The ALJ found that Plaintiff had not engaged in substantial gainful activity during the period from April 18, 2007*fn1 though the date last insured of December 31, 2007.*fn2 (AR 12.) The ALJ found that Plaintiff had the following severe impairments: back pain, status post bilateral carpal tunnel releases, and obesity. (Id.) However, the ALJ determined that Plaintiff's impairments did not meet or were not medically equal to, one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR 13.)

The ALJ adopted the previous ALJ decision in finding that, between April 18, 2007 and December 31, 2007, Plaintiff retained the residual functional capacity ("RFC") to "lift 20 pounds occasionally and 10 pounds frequently, stand and/or walk six hours in an eight-hour workday, and sit six hours in an eight hour workday. The claimant must avoid work at unprotected heights or work on dangerous machinery. She can occasionally stoop, kneel, crouch, and crawl. She can never climb or balance. She is precluded from power gripping. She is limited to a maximum of two hours of keyboarding per day, 15 minutes at a time." (AR 13.) The ALJ determined that Plaintiff was unable to perform any past relevant work. (AR 15.) However, the ALJ concluded, based upon the testimony of the VE, that Plaintiff was capable of performing various other jobs that exist in significant numbers in the national economy. (AR 16.) Therefore, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act. 20 C.F.R. § 416.920(f). (Id.)

On July 28, 2010, the Appeals Council denied review (AR 1-4), and Plaintiff timely commenced this action for judicial review. On March 22, 2011, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues, in which Plaintiff claims that (1) the ALJ failed to properly consider lay witness testimony and (2) the ALJ failed to properly consider a treating physician's opinion. (Joint Stip. 3.) Plaintiff asks the Court to order an award of benefits, or in the alternative, remand for further proceedings. (Joint Stip. 18.) The Commissioner requests that the ALJ's decision be affirmed. (Id.)

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or ALJ's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. Discussion

A. The ALJ Did Not Err In Failing to Discuss the Lay Witness Report Provided by Plaintiff's Sister

Plaintiff contends that the ALJ failed to properly consider the written statements submitted by Plaintiff's sister, Sharon Davis. (Joint Stip. 3.) On March 18, 2008, Ms. Davis completed a "Function Report --Adult -- Third Party" form describing Plaintiff's daily activities and other functions. (AR 156-163.) Plaintiff argues that the ALJ erred by failing to discuss this report and by failing to provide germane reasons for doing so. The Commissioner argues that any error was harmless. The Court agrees.

The testimony of lay witnesses regarding their own observations of the claimant's impairments constitutes competent evidence that must be taken into account and evaluated by the Commissioner in the disability evaluation. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). Such testimony cannot be discounted unless the ALJ gives reasons that are germane to that witness. Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); Stout v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006) (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). "[W]here the ALJ's error lies in a failure to properly discuss competent lay testimony favorable to the claimant, a ...


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