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Tonya T. Cooley v. Michael J. Astrue

June 27, 2011

TONYA T. COOLEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff filed a Complaint on May 12, 2010, seeking review of the denial by the Social Security Commissioner (the "Commissioner") of plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and social security income ("SSI"). On June 21, 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on April 25, 2011, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and defendant requests that the Commissioner's decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.

Plaintiff, who was born on May 20, 1960, filed an application for a period of disability, DIB, and SSI.*fn1 (Administrative Record ("A.R.")25.) Plaintiff claims to have been disabled since January 24, 2005, due to a neck injury, carpal tunnel syndrome in both wrists, disc deterioration and spurs, and depression. (A.R. 28, 43, 123, 176.) Plaintiff has past relevant work experience as a restaurant manager and waitress. (A.R. 30.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 25, 43-47, 54-58), plaintiff requested a hearing (A.R. 65-66). On November 19, 2008, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Helen Hesse (the "ALJ"). (A.R. 663-86.) Medical expert Joseph Jensen (an orthopedic surgeon) and vocational expert Stephen Berry also testified. (Id.) On April 22, 2009, the ALJ denied plaintiff's claim (A.R. 25-32), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 6-9). That decision is now at issue in this action.

The ALJ found that plaintiff has not engaged in substantial gainful activity since January 24, 2005, the alleged onset date of her claimed disability. (A.R. 27.) The ALJ further found that plaintiff met the insured status requirements of the Social Security Act through December 31, 2010. (Id.) The ALJ determined that plaintiff has the following severe impairments: "multi level cervical degenerative disc disease C5-6 and C6-7 with bulging, neural foraminal narrowing and left sided radiculopathy, left shoulder impingement and tendonitis, and bilateral carpal tunnel syndrome with status post carpal tunnel release with improvement and left median nerve slowing." (A.R. 27.) The ALJ also determined that plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1525, 404.1526, 416.925, 416.926). (A.R. 28.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to: perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) which permits lifting and carrying 20 pounds occasionally and 10 pounds frequently, sitting for 6 hours out of an 8 hour day, and standing/walking for 6 hours out of an eight hour day with a change of position at normal workday breaks; no walking over uneven surfaces; no climbing ladders/scaffolds or crawling; occasional climbing stairs, bending, balancing, stooping, kneeling, and crouching;frequent handling/gross manipulation and frequent fine manipulation/manual dexterity/fingering with the left hand; no reaching at or above shoulder level with the bilateral upper extremities; occasional range of motion of the neck from side to side or up and down; and no working at unprotected heights or being around dangerous or fast moving machinery. (A.R. 28.)

The ALJ concluded that plaintiff was unable to perform her past relevant work. (A.R. 30.) However, having considered plaintiff's age, education, work experience, RFC, as well as the testimony of the vocational expert, the ALJ found that jobs exist in the national economy that plaintiff could perform, including those of information clerk, cashier, and sales attendant. (A.R. 31.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, from January 24, 2005, through the date of her decision. (A.R. 32.)

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v.Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.

DISCUSSION

Plaintiff makes the following claims: (1) the ALJ improperly evaluated plaintiff's excess pain testimony; and (2) the ALJ erred at step 5 by improperly relying on the vocational expert's opinion that certain job positions would accommodate neck motion limitations when the Dictionary of Occupational Titles (the "DOT") was silent on the matter. (Joint Stipulation ("Joint Stip.") at 1-32.)

II. The ALJ Failed To Give Clear And Convincing Reasons For Finding Plaintiff's Excess Pain ...


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