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Karen L. Parks v. Michael J. Astrue

March 7, 2011

KAREN L. PARKS, PETITIONER,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, RESPONDENT.



The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Currently pending before the Court for its consideration is Petitioner Karen L. Park's ("Petitioner") Petition for Review (Dkt. 1) of the Respondent's denial of social security benefits, filed on October 7, 2009. The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record ("AR"), and for the reasons that follow, will remand to the Commissioner with an order to grant benefits.

PROCEDURAL AND FACTUAL HISTORY

Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on August 11, 2006, alleging a disability onset date of September 15, 2005, due to fibromyalgia, sleep disorder, migraines, depression, degenerative disc disease, and irritable bowel syndrome. Petitioner's application was denied initially and on reconsideration. A hearing was held on January 6, 2009, before Administrative Law Judge ("ALJ") Lloyd Hartford, who heard testimony from Petitioner, medical expert Thomas Atkin, M.D., and vocational expert Anne Aastum. ALJ Hartford issued a decision finding Petitioner not disabled on April 1, 2009, and Petitioner timely requested review by the Appeals Council, which denied her request for review on August 24, 2009.

Petitioner appealed this final decision to the Court. The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g). At the time of the hearing, Petitioner was 56 years of age. Petitioner completed high school. Her prior work experience includes a 26 year work history for a grocery chain in various positions, including cashier, bookkeeper, and department manager.

SEQUENTIAL PROCESS

The Commissioner follows a five-step sequential evaluation for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must be determined whether the claimant is engaged in substantially gainful activity. The ALJ found Petitioner had not engaged in substantial gainful activity since her alleged onset date. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's fibromyalgia, cervical degenerative disc disease, obesity, bilateral hip bursitis, adjustment disorder with depressed mood, pain disorder, and general medical conditions severe within the meaning of the Regulations.

Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Petitioner's impairments, specifically her fibromyalgia and degenerative disc disease, did not meet or equal the criteria for the listed impairments. If a claimant's impairments do not meet or equal a listing, the Commissioner must assess the claimant's residual functional capacity ("RFC") and determine at step four whether the claimant has demonstrated an inability to perform past relevant work.

The ALJ found Petitioner to be not credible concerning the severity and limiting effects of her pain, and therefore determined she was able to perform her past relevant work as a cashier, department manager, or supervisor.

As a result, the ALJ did not consider step five, which would have shifted the burden to the Commissioner to demonstrate that the claimant retains the capacity to make an adjustment to other work that exists in significant levels in the national economy, after considering the claimant's residual functional capacity, age, education and work experience.

STANDARD OF REVIEW

Petitioner bears the burden of showing that disability benefits are proper because of the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th Cir. 1971). An individual will be determined to be disabled only if her physical or mental impairments are of such severity that she not only cannot do her previous work but is unable, considering her age, education, and work experience, to engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

On review, the Court is instructed to uphold the decision of the Commissioner if the decision is supported by substantial evidence and is not the product of legal error. 42 U.S.C. § 405(g); Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474 (1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).

The Court cannot disturb the Commissioner's findings if they are supported by substantial evidence, even though other evidence may exist that supports the petitioner's claims. 42 U.S.C. § 405(g); Flatten v. Sec'y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by substantial evidence, will be conclusive. Flatten, 44 F.3d at 1457. It is well-settled that, if there is substantial evidence to support the decision of the Commissioner, the decision must be upheld even when the evidence can reasonably support either affirming or reversing the Commissioner's decision, because the Court "may not substitute [its] judgment for that of the Commissioner." Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).

When reviewing a case under the substantial evidence standard, the Court may question an ALJ's credibility assessment of a witness's testimony; however, an ALJ's credibility assessment is entitled to great weight, and the ALJ may disregard self-serving statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ makes a careful consideration of subjective complaints but provides adequate reasons for rejecting them, the ALJ's well-settled role as the judge of credibility will be upheld as based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).

DISCUSSION

Petitioner believes the ALJ erred at step four by finding Petitioner not credible and improperly rejecting her testimony concerning the intensity, persistence and limiting effects of her pain and resulting fatigue. Because the ALJ rejected Petitioner's subjective complaints of pain, Petitioner contends the ALJ improperly rejected the opinions of Petitioner's treating physicians which, to a large extent, relied upon Petitioner's subjective complaints of pain. And finally, Petitioner contends the ALJ failed to properly consider the testimony of three lay witnesses because their testimony was based also upon Petitioner's subjective complaints of pain. Respondent contends that there was substantial evidence in the record to support the ALJ's credibility finding and, therefore, to support his rejection of the opinions of the treating physicians and lay witnesses.

Because the ALJ based his rejection of the physician testimony and lay witness statements primarily upon his finding that they relied upon testimony from the Petitioner that was not credible, the ...


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