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Wendy Whitaker v. Michael J. Astrue

May 23, 2011

WENDY WHITAKER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

I. SUMMARY

On August 27, 2010, plaintiff Wendy Whitaker ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. Case 5:10-cv-01240-JC Document 16 Filed 05/23/11 Page 2 of 9 Page ID #:783

Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum Opinion and Order of Remand because the Administrative Law Judge ("ALJ") failed to pose a complete hypothetical to the vocational expert at step five of the sequential evaluation analysis.

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

On March 21, 2007, plaintiff filed applications for Supplemental Security Income benefits and Disability Insurance Benefits. (Administrative Record ("AR") 143, 148). Plaintiff asserted that she became disabled on March 17, 2006, due to diabetes, neuropathy, bursitis, tendinitis, and carpal tunnel syndrome and because she was bi-polar. (AR 181). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel), a lay witness and a vocational expert on December 2, 2008. (AR 9, 59).

On April 29, 2009, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 9, 19). Specifically, the ALJ found:

(1) plaintiff suffered from the following severe impairments: a mood disorder not otherwise specified, Type 1 diabetes mellitus, right shoulder impingement syndrome, and carpal tunnel syndrome (AR 11); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 12); (3) plaintiff retained the residual functional capacity to perform sedentary work with certain exertional and non-exertional limitations*fn1 *fn2 (AR 12-13); (4) plaintiff could not perform her past relevant work (AR 17); (5) there are jobs that exist in significant numbers in the national economy that plaintiff could perform, specifically systems surveillance monitor (Dictionary of Occupational Titles ("DOT") § 379.367-010), and telephone operator (DOT § 235.662-022) (AR 18); and (6) plaintiff's allegations regarding her limitations were not credible (AR 13).

The Appeals Council denied plaintiff's application for review. (AR 1).

III. APPLICABLE LEGAL STANDARDS

A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. ...


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