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Laurie Lynn Zeidman v. Michael J. Astrue

October 15, 2012

LAURIE LYNN ZEIDMAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Jean Rosenbluthu.s. Magistrate Judge

I. PROCEEDINGS

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER

Plaintiff seeks review of the Commissioner's final decision denying her application for Social Security disability insurance benefits ("DIB") and Supplemental Security Income benefits ("SSI"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed September 13, 2012, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed and this action is dismissed.

II. BACKGROUND

Plaintiff was born on March 14, 1957. (Administrative Record ("AR") 33.) She has a high school education. (Id.) Plaintiff worked for approximately 30 years as a credit analyst and customer service representative. (AR 34, 155.) On January 16, 2007, Plaintiff injured her shoulder and back after she fell down a flight of stairs at work. (AR 247, 248-49.) Plaintiff was away from work for one week and then returned to work; she continued to work continuously until November 16, 2007, when she was laid off. (AR 34, 154, 249.) She received unemployment benefits from November 2007 until March 2008, at which point, she alleges, her pain worsened and she became unable to work. (AR 34.)

On September 29, 2008, Plaintiff filed SSI and DIB

applications, alleging that she had been unable to work since November 16, 2007, because of lower back pain, right arm and right shoulder pain, and nerve damage. (AR 136-38, 139-47, 154, 183.)*fn1 After Plaintiff's applications were denied, she requested a hearing before an Administrative Law Judge ("ALJ"). (AR 63-69.) A hearing was held on January 19, 2010, at which Plaintiff, who was represented by counsel, appeared and testified on her own behalf. (AR 29-52.) Medical Expert Dr. Richard Hutson and Vocational Expert ("VE") Susan Green also testified. (AR 37-51.) In a written decision issued on February 2, 2010, the ALJ determined that Plaintiff was not disabled. (AR 14-28.) Plaintiff then requested review of the ALJ's decision and submitted additional evidence to the Appeals Council; on September 10, 2011, the Appeals Council incorporated the additional evidence into the record but denied Plaintiff's request for review. (AR 1-5.) This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The 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. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (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 720-21.

IV. THE EVALUATION OF DISABILITY

People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

A. The Five-Step Evaluation Process The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC")*fn2 to perform her past work; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because she can perform other substantial gainful work available in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

B. The ALJ's Application of the Five-Step Process At step one, the ALJ found that Plaintiff had not engaged in any substantial gainful activity since November 16, 2007. (AR 19.) At step two, the ALJ concluded that Plaintiff had the severe impairments of degenerative disc disease of the lumbar spine, status post right shoulder rotator cuff tear, and mild degenerative changes of the cervical spine. (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 20-21.) At step four, the ALJ found that Plaintiff retained the RFC to perform "less than the full range of light work,"*fn3 with the limitations that Plaintiff can lift and carry up to 10 pounds occasionally and frequently; stand and walk up to 6 hours in an 8 hour day; and sit up to 6 hours in an 8 hour day. The claimant must also be allowed to alternate between a standing and sitting position for up to 5 minutes every hour; so long as the claimant does not leave her workstation. She is also limited to occasional postural activities, except that she cannot climb ropes, ladders, and scaffolds. She must avoid concentrated exposure to cold, heat, wetness, humidity, and vibration; and she cannot be exposed to heights or hazards. Finally, she cannot lift above shoulder level using her right upper extremity. (AR 21.) Based on the VE's testimony, the ALJ concluded that Plaintiff was able to perform her past work as a credit analyst as it is generally performed. (AR 23-24.) In the alternative, the ALJ found that Plaintiff could also perform the job of receptionist. (AR 24.) The ALJ concluded that jobs existed in significant numbers in the national economy that Plaintiff could perform. (Id.) Accordingly, the ALJ determined that Plaintiff was not disabled. (AR 25.)

V. DISCUSSION

Plaintiff alleges that the ALJ erred in (1) determining her RFC; (2) failing to properly consider her testimony regarding her subjective symptoms; and (3) determining that she can return to her past relevant work or perform other work. (J. Stip at 2.)

A. The ALJ Did Not Err in Determining Plaintiff's RFC Plaintiff contends that the ALJ erred in determining her RFC because he did not take into account various medical evidence in the record indicating that she had additional functional impairments. (J. Stip. at 2-7, 14-16.)

1. Applicable law A district court must uphold an ALJ's RFC assessment when the ALJ has applied the proper legal standard and substantial evidence in the record as a whole supports the decision. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). The ALJ must have considered all of the medical evidence in the record and "explain in [his or her] decision the weight given to . . . [the] opinions from treating sources, nontreating sources, and other nonexamining sources." 20 C.F.R. §§ 404.1527(f)(2)(ii), 416.927(f)(2)(ii). In making an RFC determination, the ALJ may consider those limitations for which there is support in the record, including limitations "consistent with" a medical source's findings, and need not consider properly rejected evidence or properly rejected subjective complaints. See Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1197--98 (9th Cir. 2004) (finding that "substantial evidence" supported ALJ's RFC determination that plaintiff "can walk about four blocks at a time, stand for one hour, sit for one hour, occasionally lift 10--20 pounds, and drive for 15 minutes at a time" because findings were "consistent with" - albeit not identical to - examining therapist's determination that plaintiff "can lift 26 pounds occasionally, lift 13 pounds frequently, and complete an 8 hour work day given an opportunity to change positions"); Bayliss, 427 F.3d at 1217 (upholding ALJ's RFC determination because "the ALJ took into account those limitations for which there was record support that did not depend on the claimant's subjective complaints"); see also Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) (when plaintiff argued that ALJ's RFC assessment was not supported by substantial evidence because "[i]t was only the ALJ himself, a layperson in medical matters, who opined that [plaintiff] can tolerate all but heavy concentration of respiratory contamination or pollution," district court nonetheless found that physician's overall opinion constituted "substantial evidence" to support ALJ's RFC determination).

An ALJ does not need to adopt any specific medical source's RFC opinion as his or her own. Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) ("It is clear that it is the responsibility of the ALJ, not the claimant's physician, to determine residual functional capacity."); 20 C.F.R. ยงยง 404.1546(c), 416.946(c) ("[T]he administrative law judge . . . is responsible for assessing your residual functional capacity."). "The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings." See Batson, 359 F.3d at 1195; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). The Court must consider the ALJ's decision in the context of "the entire record as a whole," and if the ...


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