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Karen E. Soper v. Michael J. Astrue

July 26, 2011


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


Plaintiff filed a Complaint on June 25, 2010, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for Disabled Widow's Benefits. On August 2, 2010, the parties consented to proceed, pursuant to 28 U.S.C. § 636(c), before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on February 23, 2011, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits; 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.


On November 9, 2006, plaintiff's husband passed away, and on March 8, 2007, plaintiff filed an application for benefits as a disabled widow. (Administrative Record ("A.R.") 12.) Plaintiff, who was born on November 23, 1956 (A.R. 44),*fn1 alleges an inability to work since June 19, 2006, due to arthritis and fibromyalgia (A.R. 46-49, 57-60). Plaintiff has no past relevant work experience, because she had no earnings in the past fifteen years that met the criteria for substantial gainful activities. (A.R. 20.)

The Commissioner denied plaintiff's application initially on April 5, 2007 (A.R. 46-49), and upon reconsideration on August 31, 2007 (A.R. 57-61). Plaintiff filed a written request for a hearing on October 16, 2007. (A.R. 7.) On February 17, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Joseph D. Schloss (the "ALJ"). (A.R. 23-43.) Vocational expert Corinne J. Porter and medical expert Arthur Lorber, M.D., an orthopedic surgeon, also testified. (Id.) On June 25, 2009, the ALJ denied plaintiff's claim (A.R. 9-21), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-3). That decision is now at issue in this action.


The ALJ found that plaintiff has not engaged in substantial gainful activity since June 19, 2006, the alleged onset date of plaintiff's claimed disability. (A.R. 14.) The ALJ further found that plaintiff has no past relevant work history (A.R. 19), is closely approaching advanced age, and has at least a high school education (A.R. 20). The ALJ determined that plaintiff has the severe impairments of degenerative joint disease of the shoulder, degenerative disc disease of the lumbar/cervical spine, and fibromyalgia. (A.R. 14.) The ALJ also determined that plaintiff does not have an impairment or combination of impairments that meets or equals any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1525 and 404.1526). (A.R. 15.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") "to perform less than a full range of light work as defined in 20 C.F.R. 404.1567(b)" and concluded that plaintiff:

can occasionally lift and/or carry 20 pounds and frequently 10 pounds; she is limited to pushing and pulling within the same weight restrictions; she can stand and/or walk six hours in an eight-hour work day and sit for six hours with a sit/stand/walk option; she can occasionally climb, bend, stoop, squat, and balance; she can occasionally reach overhead with the right upper extremity; she is precluded from crawling or climbing ladders, ropes or scaffolds; she should not work in an environment with concentrated exposure to extreme heat or cold; she should not work at unprotected heights; and she is precluded from using hazardous equipment.

(A.R. 15.)

The ALJ concluded that transferability of job skills is not an issue, because plaintiff does not have past relevant work. (A.R. 20.) 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 can perform, including those of mail clerk, furniture rental consultant, and garment sorter. (A.R. 20.) Accordingly, the ALJ concluded that plaintiff has not been under a disability within the meaning of the Social Security Act from June 19, 2006, through the date of his decision. (A.R. 21.)


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 & 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.


Plaintiff alleges the following two issues: (1) whether the ALJ erred in his analysis of the medical and vocational evidence; and (2) whether the ALJ erred in his evaluation of plaintiff's credibility and subjective symptoms. (Joint Stipulation ("Joint Stip.") ...

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