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Anita Vancil v. Michael J. Astrue

December 13, 2011


The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed December 13, 2011 **



In this Social Security action, plaintiff Anita Vancil appeals a final decision by the Commissioner ("defendant") denying her application for disability insurance benefits. Presently 19 before the court are the parties' cross-motions for summary judgment. Vancil did not file a reply 20 brief within the time permitted, and the matter is deemed fully briefed and submitted without oral 21 argument. Upon consideration on the moving papers, and for the reasons set for below, plaintiff's 22 motion for summary judgment is granted in part and denied in part; defendant's motion for 23 summary judgment is granted in part and denied in part, and the case is remanded for 24 reconsideration consistent with this opinion. Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, 25 all parties have expressly consented that all proceedings in this matter may be heard and finally 26 adjudicated by the undersigned. 27


under consideration here. Administrative Record ("AR"), p. 22. Her prior work experience includes 3 office manager, administrative assistant, and dental receptionist. AR 16, 27. She claims disability 4 since March 8, 2005 due to back pain, inability to concentrate, and difficulty walking, standing, and 5 sitting for more than 15 minutes at a time. AR 24, 26-27. 6

Plaintiff was 48 years old when the Administrative Law Judge ("ALJ") rendered the decision

Plaintiff's claim was denied initially and upon reconsideration. She requested a hearing 7 before an ALJ. In a decision dated October 24, 2008, the ALJ concluded that plaintiff was not 8 disabled under the Social Security Act. He evaluated plaintiff's claim of disability using the five-9 step sequential evaluation process for disability required under federal regulations. See 20 C.F.R. § 10 activity since March 8, 2005. At step two, he determined that she has "lumbar degenerative disc disease and lumbar spondylosis with history of extensive surgeries and bilateral trochanteric 13 bursitis" and that these are "severe impairments." AR 12. But at step three, he concluded that 14 plaintiff's impairments did not "meet or medically equal[] one of the listed impairments in 20 C.F.F. 15 functional capacity ("RFC") for sedentary work, but that she is only able to stand or walk for 2 17 hours out of an 8-hour day and sit for 6 hours of an 8 hour day. Id. The ALJ further concluded that 18 she could perform postural activities occasionally, balance frequently, required a cane to walk 19 "prolonged" distances, and needed the option to sit or stand. Id. Noting the inconsistencies between 20 his findings and the testimony of plaintiff and her treating physician, the ALJ explained that those 21 testimonies were "not credible" insofar as they contradicted the plaintiff's activity level and his RFC 22 finding. AR 15. At step five, the ALJ found that Vancil was capable of performing past relevant 23 work as an administrative assistant or dental receptionist. AR 16. 24 25 the final decision of the Commissioner. Plaintiff now seeks judicial review of that decision. 26

Pursuant to 42 U.S.C. 405(g), this court has the authority to review the Commissioner's 28 decision to deny benefits. The Commissioner's decision will be disturbed only if it is not supported 404.1520 (2007). At step one, he found that Vancil had not engaged in any substantial gainful Part 404, Subpart P, Appendix 1." AR 13. At step four, he found that Vancil had the residual

The Appeals Council denied plaintiff's request for review, and the ALJ's decision became


by substantial evidence or if it is based upon the application of improper legal standards. Morgan v. 2 Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Moncada v. Chater, 60 F.3d 521, 3 523 (9th Cir. 1995). In this context, the term "substantial evidence" means "more than a mere 4 scintilla but less than a preponderance - it is such relevant evidence that a reasonable mind might 5 accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin v. Sullivan, 6 966 F.2d 1255, 1257 (9th Cir. 1992). When determining whether substantial evidence exists to 7 support the Commissioner's decision, the court examines the administrative record as a whole, 8 considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. Where evidence 9 exists to support more than one rational interpretation, the court must defer to the decision of the 10 plaintiff's treating physician without a legitimate basis; (2) he failed to credit plaintiff's testimony 14 regarding the nature and extent of her disability; and (3) his finding is at odds with the hypothetical 15 question posed to the Vocational Expert ("VE"). Defendant asserts that the ALJ's decision was supported by substantial evidence and is free of legal error. 17

Plaintiff alleges that the ALJ failed to credit her testimony about the nature and extent of her 19 functional limitations. Dkt. No. 21, p. 22. She also argues that the ALJ impermissibly discredited 20 her assertions about her level of pain "because he did not believe her impairments produced the 21 degree of symptoms alleged." Id. at 25. 22

23 may reject a claimant's subjective complaints only if he makes specific findings that are supported 24 by the record. Bunnell v. Sullivan, 947 F.2d 341, 345-47 (9th Cir.1991). "These findings, 25 properly supported by the record, must be sufficiently specific to allow a reviewing court to 26 conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not 27

Railroad Retirement Bd., 921 F.2d 1210, 1215 (11 Cir. 1991)). Where a claimant produces objective Commissioner. Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258.


Plaintiff challenges the ALJ's decision on three grounds: (1) the ALJ rejected the opinion of

A. Plaintiff's Testimony

Once a claimant produces objective medical evidence of an underlying impairment, the ALJ 'arbitrarily discredit a claimant's testimony regarding pain.'" Id. at 345-46 (quoting Elam v. 28

medical evidence of an underlying impairment, and absent affirmative evidence that a claimant is 2 malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear and 3 convincing." Regenitter v. Comm'r of the Soc. Sec. Admin., 166 F.3d 1294, 1296 (9th Cir. 1999) 4 (citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). If a credibility finding is supported by 5 substantial evidence in the record, the court may not engage in second guessing. Thomas v. 6

In this case, the ALJ found that plaintiff has "severe impairments," but discredited her 8 allegations as to the "intensity, persistence and limiting effects" of her symptoms. AR 15. The 9 undersigned has considered the claimant's allegations of disabling pain and limitation pursuant to 10

After carefully considering all of the medical and documentary evidence, the court finds that there is a significant discrepancy between the plaintiff's assertions and the ALJ's findings with ...

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