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 plaintiff's application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act").*fn1 In her motion for summary judgment, plaintiff principally contends that the Administrative Law Judge ("ALJ") erred by finding that plaintiff's disability ceased as of June 30, 2007. (Dkt. No. 11.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 17.) Plaintiff filed a reply brief. (Dkt. No. 18.) For the reasons that follow, the court grants plaintiff's motion for summary judgment in part, denies the Commissioner's cross-motion for summary judgment, and remands the case for further proceedings under sentence four of 42 U.S.C. § 405(g).
Plaintiff was born on September 10, 1958, has an associates degree, and previously worked as a safety coordinator for a large manufacturer.*fn2 (Administrative Transcript ("AT") 192.) On April 8, 2003, plaintiff applied for DIB, alleging that she was unable to work as of September 1, 2002, due to fibromyalgia, degenerative changes of the cervical, thoracic, and lumbar spine, bilateral plantar fascitis, irritable bowel syndrome, and depression. (AT 33.) Plaintiff was found disabled by an ALJ on December 13, 2004; however, on June 27, 2007, the Commissioner determined that plaintiff was no longer disabled as of June 28, 2007. (AT 28, 37.) Plaintiff filed a request for reconsideration which was denied, and subsequently requested and received a hearing before a disability hearing officer on December 18, 2007. (AT 27, 38, 41-52.) After an unfavorable decision, plaintiff requested a hearing before an ALJ, which took place on May 26, 2009. (AT 53-65, 68, 69-75, 188-217.)
In a decision dated October 15, 2009, ALJ Daniel G. Heely determined that plaintiff's disability ended as of June 30, 2007. (AT 18-25.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 5-7, 13-14.) Plaintiff subsequently filed this action. (Dkt. No. 1.)
Plaintiff has raised the following issues: (1) whether the Commissioner improperly failed to credit the examining psychiatrist's opinion as to the extent of plaintiff's limitations; (2) whether the Commissioner improperly omitted from plaintiff's residual functional capacity assessment the restriction that she requires ready access to restroom facilities; and (3) whether the Commissioner incorrectly required a showing of pain, as opposed to tenderness, in support of plaintiff's fibromyalgia diagnosis.*fn3 (Pl.'s Mot. 1-2.) Finally, although plaintiff does not raise credibility as a separate issue, plaintiff generally contends that the ALJ wrongly rejected her subjective testimony based on his improper analysis of the medical evidence. (Pl's Mot. 1 n.1.)
Where the issue of continued disability or medical improvement is concerned, "a presumption of continuing disability arises" in the claimant's favor once that claimant has been found to be disabled. Bellamy v. Sec'y of Health & Human Servs., 755 F.2d 1380, 1381 (9th Cir. 1985) (citing Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983)). The Commissioner has the "burden of producing evidence sufficient to rebut [the] presumption of continuing disability." Id.; see also Murray, 722 F.2d at 500 ("The Secretary . . . has the burden to come forward with evidence of improvement."). However, a reviewing court will not set aside a decision to terminate benefits unless the determination is based on legal error or is not supported by substantial evidence in the record as a whole.*fn4 Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); accord Bellamy, 755 F.2d at 1381; Murray, 722 F.2d at 500.
Relevant here, a claimant's benefits may be terminated where the Commissioner produces substantial evidence that: "(A) there has been any medical improvement in the individual's impairment or combination of impairments (other than medical improvement which is not related to the individual's ability to work), and (B) the individual is now able to engage in substantial gainful activity." 42 U.S.C. § 423(f)(1). The applicable regulation defines "medical improvement" as follows:
Medical improvement is any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with your impairment(s). . .
20 C.F.R. § 404.1594(b)(1).
The Commissioner evaluates whether a claimant continues to be entitled to DIB under an eight-part analytical framework, which consists of the following steps:
(1) Are you engaging in substantial gainful activity? If you are (and any applicable trial work period has been completed), we will find disability to have ended (see paragraph (d)(5) of this section).
(2) If you are not, do you have an impairment or combination of impairments which meets or equals the severity of an impairment listed in appendix 1 of this subpart? If you do, your disability will be found to continue.
(3) If you do not, has there been medical improvement as defined in paragraph (b)(1) of this section? If there has been medical improvement as shown by a decrease in medical severity, see step (4). If there has been no decrease in medical severity, there has been no medical improvement. (See step (5).)
(4) If there has been medical improvement, we must determine whether it is related to your ability to do work in accordance with paragraphs (b)(1) through (4) of this section; i.e., whether or not there has been an increase in the residual functional capacity based on the impairment(s) that was present at the time of the most recent favorable medical determination. If medical improvement is not related to your ability to do work, see step (5). If medical improvement is related to your ability to do work, see step (6).
(5) If we found at step (3) that there has been no medical improvement or if we found at step (4) that the medical improvement is not related to your ability to work, we consider whether any of the exceptions in paragraphs
(d) and (e) of this section apply. If none of them apply, your disability will be found to continue. If one of the first group of exceptions to medical improvement applies, see step (6). If an exception from the second group of exceptions to medical improvement applies, your disability will be found to have ended. The second group of exceptions to medical improvement may be considered at any point in this process.
(6) If medical improvement is shown to be related to your ability to do work or if one of the first group of exceptions to medical improvement applies, we will determine whether all your current impairments in combination are severe (see § 404.1521). This determination will consider all your current impairments and the impact of the combination of those impairments on your ability to function. If the residual functional capacity assessment in step (4) above shows significant limitation of your ability to do basic work activities, see step (7). When the evidence shows that all your current impairments in combination do not significantly limit your ...