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Penny L. Tuter v. Michael J. Astrue

March 28, 2012


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 applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("Act")*fn1 In her motion for summary judgment, plaintiff principally contends that the Commissioner erred by finding that plaintiff was not disabled from November 27, 2007, through the date of the final administrative decision. (Dkt. No. 17.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 20.) Plaintiff filed a reply brief. (Dkt. No. 21.) 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 23, 1961, has a high school education, and previously worked primarily as a housekeeper and a food demonstrator.*fn2 (Administrative Transcript ("AT") 141, 213, 216.) On February 26, 2008, plaintiff applied for DIB and SSI, alleging that she was unable to work as of November 27, 2007, due to left hip problems, back pain, left knee pain, and left leg pain and numbness. (AT 141-54, 204, 208, 228, 230, 253, 255, 256, 451.) On April 11, 2008, the Commissioner determined that plaintiff was not disabled. (AT 66-67, 70-72.) Upon plaintiff's request for reconsideration filed April 21, 2008, the determination was affirmed on May 19, 2008. (AT 68-69, 73-76.) Subsequently, plaintiff requested a hearing before an administrative law judge ("ALJ"), which took place on March 18, 2010. (AT 34, 81-85.)

In a decision dated May 24, 2010, the ALJ determined that plaintiff has not been under a disability, as defined in the Act, from November 27, 2007, through the date of that decision. (AT 20-28.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on April 6, 2011. (AT 1-6, 12-16.) In the course of its review, the Appeals Council received additional evidence, which was made part of the record. (AT 5.) Plaintiff subsequently filed this action in federal district court on May 31, 2011. (Dkt. No. 1.)


Plaintiff has raised the following issues: (1) whether the ALJ improperly rejected the opinions of plaintiff's treating physicians; (2) whether the ALJ's assessment of plaintiff's residual functional capacity ("RFC") and resulting hypothetical question to the vocational expert ("VE") were not supported by substantial evidence; and (3) whether the ALJ improperly discredited plaintiff's testimony and third-party written statements. (Pl.'s Mot. 17.)


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).


A. Summary of the ALJ's Findings

The ALJ evaluated plaintiff's entitlement to DIB and SSI pursuant to the Commissioner's standard five-step analytical framework.*fn3 As an initial matter, the ALJ noted that plaintiff meets the insured status requirements of the Act through December 31, 2013. (AT 22.) At the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful activity as of November 27, 2007, the alleged onset date. (AT 22.) At step two, he found plaintiff's degenerative joint disease of the hips to be a severe impairment. (AT 22.) However, at step three, the ALJ determined that plaintiff's impairments did not meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 23.)

Before proceeding to step four, the ALJ assessed plaintiff's RFC and found that she could "perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except for occasional climbing of stairs and ramps, balancing, stooping, kneeling, crouching, and crawling; stand and walk 2 hours out of 8; sit 6 hours out of 8; no climbing of ladders, ropes or scaffolds, and no work at unprotected heights or working around dangerous moving machinery." (AT 23.) He further found that plaintiff must "avoid concentrated exposure to extremes of cold and A parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. ...

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