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Deanna Griffin v. Michael J. Astrue

December 5, 2012


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on October 24, 2011, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On December 19, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on July 16, 2012, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, alternatively, remanding for further administrative proceedings; and the Commissioner requests that his decision be affirmed or, alternatively, remanded for further administrative proceedings.


On May 7, 2007, plaintiff filed an application for a period of disability, DIB, and SSI, alleging an inability to work since December 31, 1994, due to "dislocation right shoulder/back injury/hyperextended knee." (Administrative Record ("A.R.") 11, 143.) Plaintiff has past work experience as a "telemarketer," "customer service-clothing," "waitress," "cocktail waitress," and "bartender." (A.R. 17, 144.)

The Commissioner denied plaintiff's application initially and upon reconsideration. (A.R. 65-69, 71-75.) On June 9, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Jay E. Levine (the "ALJ"). (A.R. 24-59.) David Reinhart, a vocational expert, also testified. (Id.) On November 12, 2009, the ALJ denied plaintiff's claim (A.R. 7-19), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-5). That decision is now at issue in this action.


The ALJ found that plaintiff met the insured status requirements of the Social Security Act through September 30, 2004, and that she had not engaged in substantial gainful activity from her alleged onset date of December 13, 1994, through the date of the decision. (A.R. 10.) The ALJ further determined that plaintiff has the severe impairments of: Meniere's disease; degenerative disc disease; degenerative joint disease; chronic right shoulder dislocations; bipolar disorder; and marijuana addiction. (A.R. 13.) The ALJ concluded that none of these impairments meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the Listing of Impairments. (Id.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform "sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a)," except she would be limited as follows:

[N]o work around unprotected heights or dangerous machinery. She would be limited to occasional climbing, stooping or lifting above shoulder level with the left upper extremity; and no balancing, kneeling, crouching, crawling, and no conveyor belt work or piecework.

(A.R. 14.)

The ALJ found that plaintiff's past work as a telemarketer constitutes past relevant work under the regulations and that she is capable of performing it, both as that work is generally performed and as she actually performed it. (A.R. 18.) Additionally, after having considered plaintiff's age, education, work experience, and RFC, the ALJ found that other jobs exist in the national economy that plaintiff could perform, including "telephone quotations clerk," "pari-mutuel ticket checker," and "order clerk food and beverage." (Id.) The ALJ further determined that plaintiff's substance abuse was not a contributing factor material to the determination of disability, because "even in the absence of her substance addiction, [the ALJ] would still not be able to find [plaintiff] to be disabled." (A.R. 18-19.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since December 31, 1994, the alleged onset date of her disability. (Id.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff alleges the following three issues: (1) whether the ALJ properly evaluated the medical evidence of record relevant to plaintiff's mental impairment; (2) whether the ALJ properly considered plaintiff's subjective complaints; and (3) whether the ALJ erred in finding that plaintiff's prior employment as a telemarketer constituted past relevant work ("PRW"). (Joint Stipulation ("Joint Stip.") at 3.)

I. The ALJ Failed To Properly Evaluate The Medical Evidence Concerning Plaintiff's Mental Impairment.

An ALJ is obligated to take into account all medical opinions of record. 20 C.F.R. ยงยง 404.1527(d), 416.927(d). It is the responsibility of the ALJ to analyze evidence and resolve conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In the hierarchy of physician opinions considered in assessing a social security claim, "[g]enerally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than ...

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