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Shelley A. Harlan v. Commissioner of Social Security

September 21, 2012


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 21) and defendant's opposition thereto (Doc. 22).


Plaintiff applied for social security benefits on January 19, 2005. In the application, plaintiff claims that disability began on November 15, 2004. Plaintiff claims that disability is caused by a combination of ". . .degenerative disc disease, multi-state osteoarthrosis primarily in the ankle and foot, obesity, depression, lupus, and hepatitis C." Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on November 29, 2006, before Administrative Law Judge ("ALJ") Mark C. Ramsey. In a May 23, 2007, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairments: degenerative disc disease of the cervical spine and hepatitis C;

2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

3. The claimant has the residual functional capacity to perform light work with no more than occasionally climbing, balancing, stooping, crawling, crouching, or kneeling; and

4. Based on the claimant's age, education, work experience, residual functional capacity, and Medical-Vocational Guidelines, jobs exist in significant numbers in the national economy that the claimant can perform.

On November 2, 2007, the Appeals Council remanded the matter with the following instructions:

1. Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations. In so doing, evaluate the examining source opinion pursuant to the provisions of 20 C.F.R. § 416.927 and Social Security Rulings 96-2p and 96-5p, and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the examining source to provide additional evidence and/or further clarification of the opinion; and

2. If needed, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base. . . . Further, before relying on the vocational expert evidence the Administrate Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles ("DOT"). . . .

Another hearing was held on March 11, 2008, before ALJ Peter F. Belli. In an April 11, 2008, decision, the ALJ concluded that plaintiff is not disabled based on essentially the same findings reached by ALJ Ramsey, with only a few differences. As to plaintiff's residual functional capacity, ALJ Belli concluded:

. . . [Claimant] is not able to climb ladders, ropes, or scaffolds. She is not able to crawl. She can occasionally stoop, crouch, and kneel. She needs to be allowed frequent flexing and extending of the cervical spine. She is not able to hold prolonged fixation of her cervical spine and she needs to change her position every 15 to 30 minutes.

As to jobs available to plaintiff, ALJ Belli considered vocational expert testimony and concluded that plaintiff is capable of performing her past relevant work as an ordained minister, gas station manager, or park tour guide. On April 30, 2009, the Appeals Council once again remanded plaintiff's case, with the following instruction: "If warranted, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base. . . ." The ALJ was once again instructed to identify and resolve any conflicts between the vocational expert's testimony and the DOT.

A third hearing was held on November 18, 2009, before ALJ Ramsey. In an April 9, 2010, decision, the ALJ again concluded plaintiff was not disabled. ALJ Ramsey's findings were the same as in his first decision, except that he defined plaintiff's residual functional capacity for light work as follows:

. . . [T]he claimant can sit for 6 hours, in 2 hour increments, and stand and walk for 6 hours, in 1-2 hour increments, in an 8 hour day. In addition, the claimant can perform occasional squatting, crouching, and climbing. Moreover, she should be allowed to change her neck position for comfort.

As to available jobs, ALJ Ramsey considered vocational expert testimony and concluded that there are jobs that exist in significant numbers in the national economy that plaintiff can perform. After the Appeals Council declined further review on February 23, 2011, this appeal followed.


The court reviews the Commissioner's final decision to determine whether it is:

(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is ". . . such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).


In her motion for summary judgment, plaintiff argues: (1) the ALJ failed to fulfill his duty to develop and/or update the records regarding plaintiff's physical and mental residual functional capacity; (2) the ALJ erred at step two of the sequential analysis in failing to find that plaintiff's depression, obesity, osteoarthrosis of the left foot/ankle, and lupus are severe impairments; (3) the ALJ erred in determining that plaintiff's testimony was not credible; (4) the ALJ erred by ignoring lay witness testimony; and (5) the ALJ failed to credit the testimony of the vocational expert in response to hypothetical questions which accurately reflected plaintiff's functional limitations.

A. Duty to Develop the Record

The ALJ has an independent duty to fully and fairly develop the record and assure that the claimant's interests are considered. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). When the claimant is not represented by counsel, this duty requires the ALJ to be especially diligent in seeking all relevant facts. See id. This requires the ALJ to "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978). Ambiguous evidence or the ALJ's own finding that the record is inadequate triggers this duty. See Tonapetyan, 242 F.3d at 1150. The ALJ may discharge the duty to develop the record by subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow for supplementation of the record. See id. (citing Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998)).

Plaintiff argues that the opinion evidence relied on by the ALJ in the latest hearing decision was stale and, as a result, the ALJ was under an obligation to obtain fresher evidence. The court does not agree. It is well-settled that the burden is on the plaintiff to produce evidence of disability. Only where the existing record is ambiguous or inadequate does the ALJ have a duty to develop the record. Neither is the case here. The evidence relied on by the ALJ is neither ambiguous nor inadequate. To the contrary, the evidence was such that the ALJ was able to render a decision supported by substantial evidence. If plaintiff believes that more recent evaluations would have showed disability, it was incumbent upon her to produce such evidence in the first instance. Plaintiff cites no case, and the court is aware of none, which holds that opinion evidence more than some number of years removed from the date of the hearing decision triggers the duty to develop the record.

B. Step Two Severity Determination

In order to be entitled to benefits, the plaintiff must have an impairment severe enough to significantly limit the physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c).*fn1 In determining whether a claimant's alleged impairment is sufficiently severe to limit the ability to work, the Commissioner must consider the combined effect of all impairments on the ability to function, without regard to whether each impairment alone would be sufficiently severe. See Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996); see also 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. §§ 404.1523 and 416.923. An impairment, or combination of impairments, can only be found to be non-severe if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work. See Social Security Ruling ("SSR") 85-28; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting SSR 85-28). The plaintiff has the burden of establishing the severity of the impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings. See 20 C.F.R. §§ 404.1508, 416.908. The plaintiff's own statement of symptoms alone is insufficient. See id.

Plaintiff argues that the ALJ erred by failing to find her depression, obesity, osteoarthrosis, and lupus to be ...

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