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August 12, 2005.


The opinion of the court was delivered by: JEFFREY S. WHITE, District Judge

Now before the Court is the motion of Plaintiff Milton Jackson ("Jackson") for summary judgment or remand and the cross-motion of the Commissioner of the Social Security Administration's ("Commissioner") for summary judgment. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having carefully reviewed the administrative record and considered the parties' papers and the relevant legal authority, the Court hereby DENIES Jackson's Motion for Summary Judgment and GRANTS the Commissioner's Cross-Motion for Summary Judgment.


  Jackson brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner denying his request for Social Security benefits. Jackson is a forty-nine year old male with a twelfth grade education. (Certified Transcript of Record Proceedings "Tr." at 7, 28, 170, 265.) He has previously worked as a certified nursing assistant, a security person, a truck driver, and a warehouse stock clerk. (Tr. at 170, 265.) Jackson claims disability due to degenerative disc disease, chronic low back pain, and depression. (Tr. at 28.) Jackson alleges that, among other limitations, he is unable to stand or sit for longer than ten to fifteen minutes due to pain in his lower back and left leg, as well as numbness in his foot. (Tr. at 98-99.) In combination with his physical limitations, he also claims that he is unable to work because his depression impairs his memory, concentration and ability to complete tasks. (Tr. at 101, 160.)

  On September 24, 1992, Jackson originally filed for disability insurance benefits, alleging a disability beginning December 18, 1991 due to back pain. (Tr. at 163-66.) Upon denial of benefits on both the initial and reconsideration applications, Jackson filed a request for hearing on March 24, 1993. (Tr. at 175-77, 186-87, 188.) On October 27, 1994, an Administrative Law Judge ("ALJ") determined that Jackson was disabled for a closed period between December 18, 1991 and February 1, 1993. (Tr. at 234-241.) The ALJ also determined that Jackson was not disabled as of February 2, 1993 because he was able to perform medium level work activity which was available in the national economy. (Tr. at 238-39.) Jackson did not timely appeal the decision and the 1994 findings became binding under res judicata.*fn1 Jackson subsequently filed a new application based on his low back pain for additional supplemental security income on February 8, 1995 (protective date) and additional social security disability insurance on July 12, 1995 (protective date), both of which were denied initially and upon reconsideration. (Tr. at 27, 250-53.)

  Jackson's alleged disability was initially based on his physical impairment. (Tr. at 261.) On February 1, 1993, Dr. Keller stated an impression of multiple level degenerative disc disease, consistent with the impression from a January 28, 1992 magnetic reasonance imaging ("MRI") of Jackson's lumbar spine. (Tr. at 205, 212.) Dr. Keller also noted evidence of L5-S1 facet arthropathy and neural foraminal stenosis. (Tr. at 205.) On March 8, 1993, Dr. Paxton reviewed Jackson's records and noted a lack of evidence of any decrease in his range of motion. (Tr. at 213.) On June 11, 1994, Dr. Lincoln, an orthopedic consultant, found no objective signs or findings to explain Jackson's symptoms. (Tr. at 223-24.) Dr. Lincoln noted that the significance of the multilevel degenerative disc disease findings indicated in the 1992 MRI was limited absent supportive clinical findings because up to one-third of the population with no history of low back pain may show similar results. (Tr. at 224.) Dr. Lincoln noted that, based on his subjective complaints, Jackson could lift fifty pounds frequently and seventy-five pounds occasionally, with occasional stooping, crouching or crawling. (Tr. at 225-27.)

  On November 7, 1994, while attending a family funeral in Virginia, Jackson went to the emergency room at Portsmouth General Hospital because he was out of pain medication. (Tr. at 283.) There, Dr. Rawls diagnosed Jackson with acute exacerbation of chronic low back pain, secondary to multilevel degenerative disc disease. (Id.)

  On November 16, 1995, Dr. Sharma found that Jackson's low back pain was due to a musculoskeletal strain and muscle spasm. (Tr. at 290.) Dr. Sharma found that Jackson could walk and stand for an hour, and could sit for up to two hours at a time — sitting up to six hours a day total. (Id.) Additionally, Dr. Sharma noted that Jackson could lift twenty-five pounds frequently and fifty pounds occasionally, with occasional bending and stooping. (Tr. at 290-91.) Based on Dr. Sharma's consultation, on December 8, 1995, Dr. Newton noted the same exertional limitations in a Residual Physical Functional Capacity Assessment. (Tr. at 293-300.)

  In 1996, Jackson was seen at both the Alameda County Medical Center Highland Hospital ("Highland") and the Hayward Medical Center ("Hayward"). (Tr. at 336-76.) On February 22, 1996, Jackson visited the walk-in clinic at Highland because his left fifth toe was painful, swollen, and discolored. (Tr. at 304.) He was diagnosed with occlusive vascular disease. (Id.) Dr. Williams evaluated an x-ray taken of Jackson's back, noting minimal generalized degenerative changes to the lumbosacral spine and no other abnormalities. (Tr. at 305, 365.) The Alameda County Social Services Agency reported that Jackson was capable of sedentary work, but could not lift over five pounds, and should not walk, climb, stand, kneel, or bend at the knee. (Tr. at 310.) On March 9, 1996, Highland referred Jackson for an urgent podiatry appointment regarding the pain and numbness in his toe. (Tr. at 345.) Dr. Eisenberg reviewed the radiology report and noted "no bony or significant soft tissue abnormality." (Tr. at 343.) On April 4, 1996, after a vascular exam, a Highland physician diagnosed him with left small toe discoloration and bilateral calf muscle spasms. (Tr. at 340.) On the same day, Dr. Eile at Hayward reviewed Jackson's echocardiolography report for sleep apnea and concluded that he had an abnormal echocardiogram. (Tr. at 355.) On December 4, 1996, Jackson was treated at Highland for acute low back strain. (Tr. at 339.) Hayward records indicate that on December 6, 1996, Jackson needed an appointment "so that form can be filled out." (Tr. at 353.)

  On March 25, 1997, San Francisco Department of Human Services completed a Triage Employability Assessment of Jackson, classifying him as unemployable due to permanent disability. (Tr. at 383-84.) The Triage worker noted Jackson's difficulty in making appointments, inability to sit for more than twenty to forty minutes or stand for more than twenty minutes, and difficulty walking more than one block. (Tr. at 384.) Jackson was subsequently screened into the SSI Service Center. (Tr. at 384, 514.)

  On August 4, 1997, Dr. Anderson, a SSI Project physician, recommended a respite bed for Jackson because he suffered from chronic low back pain with degenerative disc disease at multiple levels and experienced left sciatica with pain radiating down the left leg to the foot. (Tr. at 393.) In his SSI Project report, Dr. Anderson diagnosed Jackson with chronic pain syndrome, likely the result of lumbosacral sprain or possible lumbar facet syndrome. (Tr. at 540.) Dr. Anderson recommended the following exertional limitations: occasional ten pound or frequent less-than-ten pound carrying or lifting; standing or walking for two hours in an eight hour workday with accommodations for hourly breaks; sitting less than six hours with regular breaks every hour; alternating between sitting and standing every one-to-two hours; driving a clutch to be avoided; and climbing, stooping, bending, crouching and crawling to be prohibited. (Tr. at 541-42.) Jackson presented a depressed mood and a guarded affect, but with a normal thought content and quality, with no serious memory deficits. (Tr. at 536.) Dr. Anderson noted a "psychiatric disorder of mood, rule out dysthymia versus major depression." (Tr. at 540.)

  Jackson first raised mental impairment as a basis for disability in his request for hearing. (Tr. at 557, 563.) An ALJ vacated the previous reconsideration denial and remanded the case to the California State Agency for evaluation of Jackson's newly alleged mental disorder. (Tr. at 556-58.) In his August 11, 1997 SSI Project report, Dr. Neill, Ph.D., diagnosed Jackson with major depression, severe, and possible dysthymic disorder, with Axis II paranoid traits. (Tr. at 519.) Jackson reported to Dr. Neill that he had been homeless since 1994, and that he had suicidal ideation beginning in January 1995 after his father's death. (Tr. at 516.) Dr. Neill noted that Jackson appeared to present himself as more functional than he really was. (Tr. at 517.) He was able to complete one-step operations but erred on one two-step and each three-step operation. (Id.) Dr. Neill assessed that Jackson was unable to attend to activities of daily living, including accepting direction of a supervisor. (Tr. at 519.) Dr. Neill concluded that Jackson had a psychological disability in addition to his reported physical impairments. (Id.) Dr. Neill also felt that Jackson would not be able to manage his own funds if granted benefits. (Id.) On August 26, 1997, Dr. Neill filed an addendum to his evaluation, re-phrasing his diagnosis as "major depression super imposed over chronic dysthymia with childhood onset as well as traits of the paranoid personality disorder." (Tr. at 522.)

  On December 5, 1997, Jackson was evaluated by Dr. Backlund, Ph.D., a licensed psychologist. (Tr. at 588-90.) At that consultation, Jackson denied having been treated for severe depression. (Tr. at 588.) Dr. Backlund noted that Jackson appeared to be functioning at the low average range, and that his mood was depressed. (Id.) Dr. Backlund found Jackson's thinking clear, logical, and directed. (Id.) Dr. Backlund also noted that the testing results were suspect due to intentional deception. (Tr. at 589.) Jackson reported several daily activities to Dr. Backlund, including taking the bus, dressing himself, fixing meals, doing laundry, going shopping, watching television and listening to the radio. (Tr. at 588.) While Jackson's judgment was rated poor, Dr. Backlund concluded that Jackson could perform one or two-step repetitive tasks. (Tr. at 588-89.) Dr. Backlund found that Jackson was mildly limited in his ability to relate to others and to handle the stresses of daily activities in the work environment. (Tr. at 589.) Dr. Backlund diagnosed Jackson with depressive disorder, not otherwise specified. (Tr. at 589.)

  On December 31, 1997, Dr. Grogg reviewed Jackson's file pursuant to a Mental Residual Functional Capacity Assessment and concluded that Jackson was not significantly limited and that he could perform simple tasks. (Tr. at 574-76.) Dr. Grogg assessed Jackson for mental impairments and found depression and a limited IQ score of 68-72. (Tr. at 81-82.) However, Dr. Grogg also found that the severity of these limitations did not satisfy any listed impairment. (Tr. at 585.)

  After considering the evidence of Jackson's alleged mental impairment, the State Agency determined Jackson was not disabled because his condition was not severe enough to prevent him from working. (Tr. at 559.) Jackson ...

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