The opinion of the court was delivered by: LARRY BURNS, Magistrate Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED, DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT AND AFFIRMING AGENCY DECISION
Plaintiff Bryan L. Jackson brought this action pursuant to
42 U.S.C. §§ 1383(c)(3) and 405(g) for Judicial Review and Remedy on
Administrative Decision Under the Social Security Act, requesting
that the decision of the Commissioner of Social Security denying
his disability benefits be reversed. Subsequently he filed a
motion for summary judgment, and Defendant filed a cross-motion
for summary judgment. The motions were referred to Magistrate
Judge Louisa S. Porter for a report and recommendation pursuant
to 28 U.S.C. § 636(b)(1)(b) and Civil Local Rule 72.1(c)(1)(c).
Judge Porter recommended denying Plaintiff's motion, granting
Defendant's cross-motion, and affirming the agency decision to
deny benefits ("Report and Recommendation"). Plaintiff filed
objections to the Report and Recommendation ("Objections"), and
Defendant has not responded. Upon review of the record in light
of the Objections, the Court ADOPTS the Report and
Recommendation AS MODIFIED HEREIN. FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 2002, Plaintiff applied for supplemental social
security income benefits. At the time of filing his application,
he was a 50 years old and had high school education. His past
work experience included employment as a blue print machine
operator, bartender and auto mechanic. He alleged he had become
disabled in 1994, after three knee arthroscopies. He subsequently
underwent additional knee surgeries, and also suffered from back
pain and substance abuse. His substance abuse was in remission at
the time of the application.
The application was denied initially and on reconsideration.
After an administrative hearing, the Administrative Law Judge
("ALJ") concluded Plaintiff was not disabled and denied his
request for benefits. Plaintiff's request for administrative
review was denied. Where a request for review is denied, the
ALJ's decision becomes the final agency decision reviewed by the
court. See Batson v. Comm'r of the Social Security Admin.,
359 F.3d 1190, 1193 n. 1 (9th Cir. 2004). Plaintiff sought judicial
review in this Court. In her Report and Recommendation Judge
Porter found the ALJ's decision was based on substantial evidence
and was free of legal error. She therefore recommended denying
Plaintiff's summary judgment motion, granting Defendant's summary
judgment motion and affirming the agency decision.
The district court has jurisdiction to review the magistrate
judge's report and recommendation concerning a dispositive
motion, and makes a de novo determination of any portion of the
magistrate judge's disposition to which specific written
objection have been timely and appropriately made.
Fed.R.Civ.P. 72(b); see also United States v. Reyna-Tapia, 238 F.3d 1114,
1121 (9th Cir. 2003) (en banc). "A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge."
28 U.S.C. § 636(b)(1)(C). Since Plaintiff objects only to the Magistrate
Judge's finding pertaining to two hypothetical questions posed by
the ALJ to the vocational expert, this is the only aspect of the
Report and Recommendation reviewed by this Court. II. Court Review of Agency's Decision to Deny Benefits
The Social Security Act provides for judicial review of a final
agency decision denying a claim for disability benefits.
42 U.S.C. § 405(g). A reviewing court must affirm the denial of
benefits if the agency's decision is supported by substantial
evidence and applies the correct legal standards. Batson,
359 F.3d at 1193. Substantial evidence means "such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion." Ostenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir.
To qualify for disability benefits under the Social Security
Act, a claimant must show he is unable to engage in any
substantial gainful activity because of a medically determinable
physical or mental impairment that has lasted or can be expected
to last at least 12 months. 42 U.S.C. § 423(d). The Social
Security regulations establish a five-step sequential evaluation
for determining whether a claimant is disabled under this
standard. 20 C.F.R. § 404.1520(a); Batson, 359 F.3d at 1194.
First, the agency must determine whether the applicant is engaged
in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i).
If not, the agency must determine at step two of the evaluation
whether the claimant is suffering from a "severe" impairment
within the meaning of the regulations. Id. at §
404.1520(a)(4)(ii). If the claimant's impairment is severe, the
agency must determine at step three whether the impairment meets
or equals one of the "Listing of Impairments" contained in the
regulations. Id. at § 404.1520(a)(4)(iii). If the claimant's
impairment meets or equals a listing, he must be found disabled.
Id. If the impairment does not meet or equal a listing, the
agency must determine at step four whether the claimant retains
the residual functional capacity to perform his past relevant
work. Id. at § 404.1520(a)(4)(iv). If the claimant can no
longer perform his past relevant work, the agency at step five of
the evaluation must consider whether he can perform any other
work that exists in the national economy. Id. at §
404.1520(a)(4)(v). While the claimant carries the burden of
proving eligibility at steps one through four, the burden at step
five rests on the agency. Celaya v. Halter, 332 F.3d 1177, 1180
(9th Cir. 2003). Claimants not disqualified at step five are
eligible for disability benefits. Id. III. Plaintiff's Objections
Plaintiff contends the ALJ's finding of no disability should be
reversed because the hypothetical questions he posed to the
vocational expert were incomplete, and the expert's opinions
therefore could not properly support the finding. The Court
The ALJ found at step four of the evaluation that Plaintiff
could perform his past work as a blueprint machine operator
despite his severe impairments. At step four, the ALJ must
compare the claimant's residual functional capacity ("RFC") with
the physical and mental demands of his past relevant work to
determine whether he is able to perform such work.
20 C.F.R. § 404.1560(a)&(b).
Accordingly, the first component of evaluation at step four is
the RFC assessment. "RFC is what an individual can still do
despite his or her limitations."*fn1 SSR 96-8p, 1996 WL
374184 (S.S.A.). Since the formulation of an RFC assessment does
not involve a vocational expert opinion,*fn2 the ALJ in this
case did not rely on the vocational expert for this purpose
(see AR at 3-4), and Plaintiff in his Objections does not
challenge the RFC assessment, the RFC assessment is relevant in
the present discussion only insofar as Plaintiff contends the
hypothetical questions to the vocational expert must include the
entire RFC assessment.
The second component of evaluation at step four is a
determination of a claimant's ability to return to his past
relevant work in light of the RFC assessment and the physical and
mental demands of the prior work. The ALJ may use a vocational
expert to assist in making this determination.
20 C.F.R. § 404.1560(b)(2). Specifically, a vocational expert "may offer
expert opinion testimony in response to a hypothetical question about
whether a person with the physical and mental limitations imposed
by claimant's medical impairment(s) can meet the demands of
claimant's previous work. . . ." Id.
The ALJ in this case asked the vocational expert, Connie
Guillory, four hypothetical questions. Plaintiff contends the
first and third hypotheticals were incomplete. Plaintiff's
Objections are based on the premise the ALJ has an "obligation
under Social Security Rulings of formulating complete [RFC]
assessments in the hypothetical questions." (Objections at 2.)
For this proposition, Plaintiff relies on DeLorme v. Sullivan,
924 F.2d 841 (9th Cir. 1991). DeLorme, however, is
distinguishable from the instant case.
In DeLorme the ALJ found the claimant met his burden to prove
he could not return to his prior relevant work, and the
evaluation therefore continued to step five. Id. at 849. At
step five, the agency has the burden to prove the claimant is not
disabled because he could do other work in the national economy.
Id. The ALJ consulted a vocational expert on this point, but in
stating the hypothetical questions, he omitted the claimant's
significant mental impairment. Id. "If the hypothetical does
not reflect all the claimant's limitations, we have held that the
expert's testimony has no evidentiary ...