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Michelle L. Higginbotham v. Michael J. Astrue

November 21, 2011


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


Plaintiff filed a Complaint on August 23, 2010, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On October 1, 2010, and January 6, 2011, 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 April 7, 2011, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits; and defendant concedes that reversal is appropriate, but seeks an order remanding this case for further administrative proceedings.*fn1 The Court has taken the parties' Joint Stipulation under submission without oral argument.


On May 15, 2007, plaintiff filed an application for a period of disability, DIB, and SSI. (Administrative Record ("A.R.") 12.) Plaintiff, who was born on April 4, 1972,*fn2 claimed to have been disabled since June 1, 2004, due to back problems and back surgeries. (A.R. 12, 62, 77, 160, 191.) Plaintiff had past relevant work experience as a phlebotomist, office clerk, cashier, and teacher's assistant. (A.R. 20.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 12, 62-66, 77-82), plaintiff requested a hearing (A.R. 76). On February 6, 2009, vocational expert Sandra Fioretti ("VE Fioretti") and plaintiff, who was represented by an attorney,*fn3 appeared and testified at a hearing before Administrative Law Judge Joseph D. Schloss (the "ALJ"). (A.R. 36-57.) On July 14, 2009, the ALJ conducted another hearing during which vocational expert Corinne J. Porter ("VE Porter") testified. (A.R. 25-35.) On September 2, 2009, the ALJ denied plaintiff's claim (A.R. 12-22), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-8). That decision is now at issue in this action.


The ALJ found that plaintiff had not engaged in substantial gainful activity since June 1, 2004, the alleged onset date of her disability. (A.R. 14.) The ALJ determined that plaintiff had the severe impairments of degenerative disc disease (post surgery) and depression. (Id.) The ALJ also determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled in severity any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). (A.R. 15.)

After reviewing the record, the ALJ determined that plaintiff had the residual functional capacity ("RFC") to perform a limited range of sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a). Specifically, the ALJ determined that:

[plaintiff could] lift and/or carry 10 pounds occasionally or frequently; stand and/or walk a total of two hours in an eight-hour workday for 30 minutes at a time; and sit about six hours in an eight-hour day for not more than one hour at a time. [Plaintiff] should be provided a sit/stand option. She [wa]s limited to occasional climbing of ramps or stairs, bending, stooping, twisting, crouching or crawling. She is precluded from climbing ladders, ropes or scaffolds, balancing, from work at unprotected heights, and/or around moving machinery or vibrations. [Plaintiff] ha[d] moderate [footnote omitted] limitation in her ability to understand, remember and carry out detailed instructions, to maintain attention and concentration for extended periods, and to interact appropriately with the public.

(A.R. 16-17.)

The ALJ concluded that plaintiff was unable to perform her past relevant work but had acquired the following transferable work skills: the ability to handle receipts; count money; record transactions; keep records; interact with the public; and provide information. (A.R. 20.) Having considered plaintiff's age, education, work experience, and RFC, as well as the testimony of VE Porter, the ALJ found that plaintiff could perform jobs in the national economy, including check casher, charge account clerk, receptionist/information clerk, and surveillance systems monitor. (A.R. 20-22.) Accordingly, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act from June 1, 2004, the alleged onset date, through the date of his decision. (A.R. 22.)


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 ...

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