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") partially granting and partially 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's disability, which commenced on March 17, 2006, ceased as of October 2, 2008. (Dkt. No. 16.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 21.) For the reasons that follow, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.
Plaintiff was born on March 31, 1959, has an eleventh grade
education, and previously worked as a bartender, waitress, cashier, cashier
supervisor, courier, home health aide, and office manager.*fn2
(Administrative Transcript ("AT") 358, 360-68, 401-02.) In
August 2006, plaintiff applied for DIB and SSI,*fn3
alleging that she was unable to work as of March 17, 2006, primarily
due to left shoulder, arm, back, and neck pain; an inability or
limited ability to use her left arm and left hand; diabetes; asthma; and allergies. (AT 24, 55.)
Plaintiff's claim was denied initially and upon reconsideration, and
she thereafter requested a hearing before an administrative law judge
("ALJ"), which took place on March 19, 2009. (AT 48, 355.)
In a decision dated August 19, 2009, the ALJ determined that plaintiff had been under a disability, as defined in the Act, from March 17, 2006, through October 1, 2008, but that plaintiff's disability had ended on October 2, 2008. (AT 24-36.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on May 27, 2011. (AT 11-14.) After obtaining extensions of time from the Appeals Council, plaintiff commenced this action in federal district court on December 15, 2011, to obtain judicial review of the Commissioner's final decision. (Dkt. No. 1.)
Plaintiff raised the following issues: (1) whether the ALJ improperly rejected the opinion of plaintiff's treating physician Dr. Ghada Abdelwahed; (2) whether the ALJ improperly discounted plaintiff's testimony concerning her symptoms and functional limitations; (3) whether the ALJ improperly formulated hypotheticals for the vocational expert's consideration; and (4) whether the ALJ erroneously determined that plaintiff had not changed age categories during the relevant period.
Where the issue of continued disability or medical improvement is concerned, "a presumption of continuing disability arises" in the claimant's favor once that claimant has been found to be disabled. Bellamy v. Sec'y of Health & Human Servs., 755 F.2d 1380, 1381 (9th Cir. 1985) (citing Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983)). The Commissioner has the "burden of producing evidence sufficient to rebut [the] presumption of continuing disability." Id.; see also Murray, 722 F.2d at 500 ("The Secretary . . . has the burden to come forward with evidence of improvement"). However, a reviewing court will not set aside a decision to terminate benefits unless the determination is based on legal error or is not supported by substantial evidence in the record as a whole.*fn4 Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); accord Bellamy, 755 F.2d at 1381; Murray, 722 F.2d at 500.
A claimant's benefits may be terminated where the Commissioner produces substantial evidence that: "(A) there has been any medical improvement in the individual's impairment or combination of impairments (other than medical improvement which is not related to the individual's ability to work), and (B) the individual is now able to engage in substantial gainful activity." 42 U.S.C. § 423(f)(1). The applicable regulation defines "medical improvement" as follows:
Medical improvement is any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with your impairment(s). . . . 20 C.F.R. § 404.1594(b)(1).
The Commissioner evaluates whether a claimant continues to be entitled to DIB under an eight-part analytical framework, which consists of the following steps:
(1) Are you engaging in substantial gainful activity? If you are (and any applicable trial work period has been completed), we will find disability to have ended (see paragraph (d)(5) of this section).
(2) If you are not, do you have an impairment or combination of impairments which meets or equals the severity of an impairment listed in appendix 1 of this subpart? If you do, your disability will be found to continue.
(3) If you do not, has there been medical improvement as defined in paragraph (b)(1) of this section? If there has been medical improvement as shown by a decrease in medical severity, see step (4). If there has been no decrease in medical severity, there has been no medical improvement. (See step (5).)
(4) If there has been medical improvement, we must determine whether it is related to your ability to do work in accordance with paragraphs (b)(1) through (4) of this section; i.e., whether or not there has been an increase in the residual functional capacity based on the impairment(s) that was present at the time of the most recent favorable medical determination. If medical improvement is not related to your ability to do work, see step (5). If medical improvement is related to your ability to do work, see step (6).
(5) If we found at step (3) that there has been no medical improvement or if we found at step (4) that the medical improvement is not related to your ability to work, we consider whether any of the exceptions in paragraphs
(d) and (e) of this section apply. If none of them apply, your disability will be found to continue. If one of the first group of exceptions to medical improvement applies, see step (6). If an exception from the second group of exceptions to medical improvement applies, your disability will be found to have ended. The second group of exceptions to medical improvement may be considered at any point in this process.
(6) If medical improvement is shown to be related to your ability to do work or if one of the first group of exceptions to medical improvement applies, we will determine whether all your current impairments in combination are severe (see § 404.1521). This determination will consider all your current impairments and the impact of the combination of those impairments on your ability to function. If the residual functional capacity assessment in step (4) above shows significant limitation of your ability to do basic work activities, see step (7). When the evidence shows that all your current impairments in combination do not significantly limit your physical or mental abilities to do basic work activities, these impairments will not be considered severe in nature. If so, you will no longer be considered to be disabled.
(7) If your impairment(s) is severe, we will assess your current ability to do substantial gainful activity in accordance with § 404.1560. That is, we will assess your residual functional capacity based on all your current impairments and consider whether you can still do work you have done in the past. If you can do such work, disability will be found to have ended.
(8) If you are not able to do work you have done in the past, we will consider whether you can do other work given the residual functional capacity assessment made under paragraph (f)(7) of this section and your age, education, and past work experience....If you can, we will find that your disability has ended. If you cannot, we will find that your disability continues.
20 C.F.R. § 404.1594(f)(1)-(8).*fn5
A. Summary of the ALJ's Findings
As noted above, the ALJ determined that plaintiff was disabled ...