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Keisha D. Toney v. Michael J. Astrue

January 3, 2012


The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge


Plaintiff Keisha D. Toney ("Plaintiff") seeks review of the Commissioner's final decision denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"), pursuant to Titles II and XVI of the Social Security Act. For the reasons stated below, the Commissioner's decision is remanded for further proceedings.

I. Factual and Procedural Background

Plaintiff was born on June 19, 1971. (Administrative Record ("AR") at 31, 103). She has a college degree and relevant work experience as a telemarketer and social worker. (AR at 31-32).

In September 2008, Plaintiff filed applications for DIB and SSI, alleging that she has been disabled since October 1, 2007, due to seizures and migraine headaches. (AR at 103-09). The Social Security Administration denied Plaintiff's applications initially and on reconsideration. (AR at 49-52, 54-58).

An administrative hearing was held before an Administrative Law Judge ("the ALJ") on February 2, 2010. (AR at 27-40). Plaintiff, who was represented by counsel, testified at the hearing. (AR at 29-39). On March 23, 2010, the ALJ issued a decision finding that Plaintiff was able to perform her past relevant work and, therefore, was not disabled. (AR at 15-21). Specifically, the ALJ found that Plaintiff: (1) had not engaged in substantial gainful activity since her alleged onset date of disability (step 1); (2) suffered from severe impairments of a history of seizure disorder and migraine headaches (step 2); (3) did not have any impairments that met or equaled the criteria of a listed impairment (step 3); (4) had a residual functional capacity ("RFC") to perform the full range of work at all exertional levels, except work involving exposure to hazards; and (5) was able to perform her past relevant work as a telemarketer and social worker (step 4). (AR at 17-20). Therefore, the ALJ concluded that Plaintiff was not under a disability from her alleged onset date through the date of the decision. (AR at 21).

On March 31, 2011, the Appeals Council denied review, and the ALJ's decision became the final decision of the Commissioner. (AR at 1-3).

Plaintiff commenced this action for judicial review on June 9, 2011. The parties filed a Joint Stipulation outlining disputed factual and legal issues on December 20, 2011. Plaintiff contends that the ALJ:

(1) erred in assessing Plaintiff's RFC, by failing to include non-exertional limitations associated with migraine headaches; (2) improperly rejected the opinion of Plaintiff's treating physician, Jose Veliz, M.D.; and (3) improperly rejected Plaintiff's subjective symptom testimony. (Joint Stipulation at 5-8, 13-19, 23-26, 31-33). Plaintiff seeks remand for payment of benefits or, in the alternative, remand for further proceedings. (Joint Stipulation at 33). The Commissioner requests that the ALJ's decision be affirmed. (Joint Stipulation at 34). The Joint Stipulation has been taken under submission without oral argument.

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or ALJ's findings and decision should be upheld if they are free from legal error and are supported by substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-721.

III. Discussion

Plaintiff contends that the ALJ erred in assessing her RFC by failing to account for limitations in her ability to work caused by her migraine headaches and side effects from medication. (Joint Stipulation at 5-8, 13-15).

A claimant's RFC is an assessment of what the claimant can do despite her physical, mental and other limitations. See 20 C.F.R. ยงยง 404.1545(a), 416.945(a). In assessing RFC, the ALJ must discuss the individual's ability to perform sustained work in an ordinary work setting on a regular and continuing basis and describe the maximum amount of each work-related activity the ...

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