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Carolyn A. Smith v. Michael J. Astrue

March 30, 2012



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act. For the reasons discussed below, the court grants plaintiff's motion for summary judgment and denies defendant's motion for summary judgment, and remands the case for further proceedings.


Plaintiff formally applied for DIB and SSI on September 27, 2006. Administrative Record ("AR") 23. Her application alleged that she had been disabled since October 1, 2004. Id. Her application was denied initially and upon reconsideration, and plaintiff requested an administrative hearing. Id. On August 12, 2008, a hearing was held before administrative law judge ("ALJ") William C. Thompson. AR 30-80. Plaintiff, who was represented by an attorney, testified at the hearing. Id. at 23. Vocational expert (VE) Susan L. Creighton-Clavel also testified at the hearing. Id.

The ALJ issued a decision on November 18, 2008, finding that plaintiff was not disabled.*fn1 Id. at 23-29. The ALJ made the following specific findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2010.

2. The claimant has not engaged in substantial gainful activity since October 1, 2004, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant had the following severe impairment: fibromyalgia (20 CFR 404.1521 et seq. and 416.921 et seq.). ...

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525, 404.1526, 416.925 and 416.926).

5. After careful consideration of the entire record, I find that the claimant can stand/walk for 6 hours in combination in an 8 hour workday, sit for 6 hours in an 8 hour workday, and have the opportunity to alternative [sic] sitting and standing about every 2 hours. She can occasionally climb stairs or ramps. She can lift and carry 10 pounds frequently and 20 pounds occasionally. ...

6. The claimant is capable of performing past relevant work as a teacher's aide. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965). ...

7. The claimant has not been under a disability, as defined in the Social Security Act, from October 1, 2004 through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).

Id. at 25-29.

Plaintiff requested that the Appeals Council review the ALJ's decision. However, on May 25, 2010, the Appeals Council denied review, leaving the ALJ's decision as the "final decision of the Commissioner of Social Security." Id. at 1-4.


The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "'It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

"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). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).


Plaintiff contends that the ALJ erred in 1) finding that her only severe impairment was

fibromyalgia; 2) rejecting her treating physician's and treating therapist's opinions without a legitimate basis for doing so; 3) failing to credit her testimony and third party statements about the nature and extent of her functional limitations, and 4) failing to credit the VE's testimony in response to hypothetical questions which accurately reflected plaintiff's residual functional capacity.*fn2

A. The ALJ Did Not Err in Finding That Plaintiff's Only Severe Impairment was Fibromyalgia.

At step two, the ALJ found that plaintiff's only "severe impairment" was fibromyalgia. AR 25. Plaintiff argues that the ALJ should have found that her irritable bowel syndrome, degenerative disc disease, osteoarthritis, bipolar disorder, major depressive disorder, and ...

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