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Perry v. Barnhart


October 27, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge


Plaintiff Cheri R. Perry moves for summary judgment or remand. Defendant Jo Anne B. Barnhart, Commissioner of the Social Security Administration, opposes the motion and cross-moves for summary judgment. Having considered all of the papers filed by the parties, the Court DENIES Plaintiff's motion and GRANTS Defendant's cross-motion for summary judgment.


I. Procedural History

On January 21, 1998, Plaintiff protectively filed an application for Supplemental Security Income (SSI) Benefits under section 1614(a)(3)(A) of the Social Security Act and on February 2, 1998, she filed an application for Disability Insurance Benefits (DIB) under section 216(i) and 223 of the Act, alleging disability since September 6, 1996*fn1 , due to upper extremity problems, stress, anxiety and depression. Plaintiff's claims for SSI Benefits and DIB were denied initially on June 18, 1998 and upon reconsideration on September 21, 1998. Plaintiff filed a timely request for hearing on November 20, 1998. A hearing was held on May 4, 1999 before ALJ Catherine R. Lazuran. Plaintiff appeared, waived her right to representation, and testified on her own behalf. On November 24, 1999, ALJ Lazuran issued a decision concluding Plaintiff was not disabled. On January 24, 2000, Plaintiff filed a request for review of the unfavorable ALJ decision. On February 6, 2001, the Appeals Council denied Plaintiff's request for review. Plaintiff did not appeal.

On March 17, 2003, Plaintiff re-applied for DIB under Title II of the Social Security Act, alleging disability due to the same impairments and the same onset date of September 6, 1996. Plaintiff's date last insured (DLI) is December 31, 2001. Plaintiff's application was denied initially on May 20, 2003, and was denied upon reconsideration on September 18, 2003 on the ground that the medical evidence was insufficient to show disability on or before the DLI. Plaintiff requested review by an ALJ, but she waived her right to appear at the hearing. On April 16, 2004, ALJ Richard D. Wurdeman issued a decision in which he found that Plaintiff was not disabled. On August 30, 2004, the Appeals Council denied Plaintiff's request for review. Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).

II. Factual History

A. Plaintiff's Education and Work Experience

Plaintiff was born on June 26, 1964. (Tr. 67.) She completed high school in 1982. (Id.) From 1982 to 1985, Plaintiff was employed as a fast food assistant manager. (Tr. 95.) From 1985 to September, 1996, she worked as a production trainer for an optical manufacturer called Sola Optical, training employees to inspect lenses and to assemble and dissemble glass molds. (Tr. 63.) From May, 2001 to September, 2002, Plaintiff was enrolled in a vocational rehabilitation program to become a legal assistant. (Tr. 128-35.) After completing the program, Plaintiff worked part-time, from mid-January until February, 2003, but claimed she could not continue because of extreme pain in her right arm. (Tr. 67.) Plaintiff has not engaged in substantial gainful activity since September 6, 1996. (Tr. 63.)

B. Medical Evidence Submitted at 1999 Hearing

Plaintiff first felt the pain in her upper extremities in April, 1996 (Tr. 63), and started to see her primary physician, Judith Heiler, M.D., in July, 1996. (Tr. 65.) On October 18, 1996, Plaintiff was referred to an orthopedic surgeon, Gary P. McCarthy, M.D. (Tr. 120.) On November 13, 1996, Dr. McCarthy referred Plaintiff to Wayne Souza, Pharm. D., for acupuncture (Tr. 114), and Plaintiff "showed a slow, steady improvement in her symptoms and [felt] that her pain [had] gone from a 10 to a 5." (Tr. 111.) On February 26, 1997, Dr. McCarthy examined Plaintiff "for the purpose of issuing a treating physician's final medical-legal evaluation." (Tr. 120.) Dr. McCarthy diagnosed Plaintiff with: "1. Overuse syndrome, upper extremities, with lateral epicondylitis.*fn2 2. DeQuervain's.*fn3 3. Intermittent cubital tunnel syndrome.*fn4 4. Flexor tendon tendinitis."*fn5 (Tr. 124.) Dr. McCarthy opined that Plaintiff had "sustained a disability to her upper extremities precluding heavy lifting, torque-like motions and prolonged fine dexterity motions as well as repetitive forceful gripping." (Tr. 125.)

C. 1999 ALJ Decision

In her November 24, 1999, unfavorable decision, ALJ Lazuran relied on Dr. McCarthy's examination for medical evidence of Plaintiff's condition. (Tr. 26.) ALJ Lazuran found that Plaintiff had bilateral upper extremity overuse syndrome and an adjustment disorder, impairments that in combination were severe but did not meet or equal the criteria of any of the impairments listed in Appendix 1 of the Regulations (20 C.F.R, Part 404, Subpart P, Appendix 1.) (Tr. 29.) The ALJ also found that Plaintiff's complaints were not fully credible in light of the discrepancies between Plaintiff's assertions and the medical history on record. (Id.) The ALJ found that Plaintiff retained the residual functional capacity (RFC) for light work that does not require prolonged manipulation or repetitive forceful gripping. (Id.)

ALJ Lazuran solicited testimony from a vocational expert (VE). (Tr. 28.) In response to the ALJ's hypothetical about an individual with Plaintiff's RFC for light work who must avoid prolonged fine dexterity motions or repetitive forceful gripping, the VE identified several sedentary jobs such an individual could perform, including charge account clerk, telephone quotation clerk and surveillance monitor positions. (Tr. 228-30.) The VE testified that 550,000 sedentary jobs existed in the national economy and 11,000 existed in the Bay Area. (Tr. 228-29.) Based on the VE's testimony, the ALJ found that Plaintiff would be able to return to her past work as a fast food assistant manager. (Tr. 28.)

D. Post-November 24, 1999 Medical Evidence

From November 25, 1999 through March 13, 2003, Plaintiff's treating physician, Dr. Heiler, examined Plaintiff at least ten times. (Tr. 137-154.) The visits between November 25, 1999 and November 27, 2000 were unrelated to Plaintiff's disabling injuries and were instead regular annual physical and "Female" examinations. (Tr. 137-143.) From November 27, 2000 to March 13, 2003, only three of Plaintiff's visits with Dr. Heiler pertained to her disabling injuries: November 27, 2000; December 17, 2001; and March 13, 2003 visits.*fn6 (Tr. 143-154.) On November 27, 2000, Dr. Heiler diagnosed Plaintiff with "Tendonitis with chronic pain syndrome, stemming from injury in 4/96." (Tr. 142.) At this visit, Dr. Heiler advised Plaintiff to continue her meditation and exercise regime and referred Plaintiff to Dr. Susan Ahart, a psychiatrist Plaintiff had seen immediately following her injury in April, 1996. (Id.) There is no record that Plaintiff made an appointment with Doctor Ahart or was treated by her. Dr. Heiler also encouraged Plaintiff to consider looking into "vocational rehabilitation as soon as possible, as being a more active player in her recuperation . . . will help her depression clear more quickly." (Id.)

In her medical note of Plaintiff's December 17, 2001 visit, Dr. Heiler stated that Plaintiff was enrolled in a vocational training course that involved "typing, writing, etc." (Tr. 138.) Dr. Heiler further noted that Plaintiff was caring for her four month old infant, which required more repetitive use of her arms. (Id.) Dr. Heiler indicated that, in addition to the right elbow and forearm pain, Plaintiff felt some intermittent pain in the left upper shoulder region. (Id.) Dr. Heiler found that Plaintiff's right arm "reveals tenderness at the lateral epicondyle and into the right forearm muscles." (Id.) However, Dr. Heiler noted that Plaintiff had full grip strength and full range of motion in her shoulders and neck. (Id.) At this visit, Dr. Heiler diagnosed, "1. Chronic right epicondylitis/tendinitis of the forearm. 2. Left trapezius strain," and prescribed Ibuprofen 600 mg, tennis elbow band for the right forearm and "use of ice, heat, conservation measures." (Id.)

Two State agency physicians, Sandra Clancy, M.D. and Marshall Gollub, M.D., assessed Plaintiff's records for the period before her DLI, and concluded that Plaintiff had an RFC allowing her to perform work that did not require repetitive or prolonged manipulations. (Tr. 171-78.)

In connection with Plaintiff's emotional disability, Dr. Heiler noted on November 27, 2000, that Plaintiff's anxiety and depression appeared to be precipitated by her pain, her financial situation and family matters. (Tr. 142-43.) Dr. Heiler diagnosed an adjustment reaction with anxiety and depression. (Tr. 142.) Two State agency psychiatrists, S. Reagan, M.D. and Lon Gottschalk, M.D., reviewed Plaintiff's record through the DLI, and determined that there was insufficient evidence to conclude Plaintiff was limited by a mental impairment. (Tr. 179-80, 186-87).

E. 2004 ALJ Decision

In ALJ Wurdeman's April 16, 2004, decision finding Plaintiff not disabled, he noted that Plaintiff had previously filed an application for DIB alleging the same onset date of injury, and that the application had been denied by ALJ Lazuren on November 24, 1999 following a hearing. The ALJ further noted that, on February 6, 2001, the Appeals Council denied Plaintiff's request for review of ALJ Lazuran's decision and that Plaintiff did not appeal further. (Tr. 16.)

ALJ Wurdeman found that there was no new and material evidence that would allow him to reopen the prior ALJ's determination of no disability. (Tr. 18) This, he noted, meant that the earliest possible onset date (EPOD) for Plaintiff's disability was November 25, 1999, one day after the date of the prior ALJ's ruling. (Tr. 17.) ALJ Wurdeman indicated that because Plaintiff's DLI was December 31, 2001, to be eligible for DIB she would have to establish that she was disabled in the period during which she met the disability insured status requirement, between the EPOD and the DLI. This is the relevant period.

ALJ Wurdeman pointed out that the Ninth Circuit's holding in Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), and Acquiescence Ruling (AR) 97-4(9) required him to give effect to ALJ Lazuran's finding that Plaintiff was not disabled unless Plaintiff was able to show material change in circumstances during the relevant period. (Tr. 16-18.) The ALJ reasoned that Plaintiff was still considered a younger person because she was thirty-nine years old, there were no new significant medical records to show any change in Plaintiff's physical or mental condition and Plaintiff had not alleged the existence of an impairment not previously considered. (Tr. 18.) Thus, ALJ Wurdeman found that Plaintiff had failed to demonstrate changed circumstances, such as a change in her age category, an increase in the severity of her impairments or an allegation of an additional impairment. (Id.)

ALJ Wurdeman further found that, for the relevant period, Plaintiff had the same RFC as determined by the prior ALJ, "that is, [Plaintiff had] the RFC for light work that does not require prolonged fine manipulation or repetitive forceful gripping." (Tr. 19.) From a psychiatric standpoint, ALJ Wurdeman found that Plaintiff was mildly limited with regard to "activities of daily living; mildly limited with regard to maintaining social functioning; mildly limited with regard to maintaining concentration, persistence or pace; and there [was] insufficient evidence of repeated episodes of decompensation in work or work-like settings." (Id.)

The ALJ noted that, although Plaintiff's RFC did not prevent her from returning to her past work as a fast food assistant manager, this job was performed more than fifteen years ago and thus it no longer qualified as past relevant work. (Id.) Accordingly, the ALJ proceeded to apply the Medical-Vocational Guidelines (Grid). (Id.) Considering Plaintiff's RFC and vocational profile, ALJ Wurdeman relied on the framework of Rule 202.21 of the Grid, Appendix 2, Subpart P, Regulations No. 4, and found Plaintiff not disabled. (Id.)


I. Overturning a Denial of Benefits

A court cannot set aside a denial of benefits unless the ALJ's findings are based upon legal error or are not supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 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); Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). It is more than a scintilla but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975).

To determine whether substantial evidence exists to support the ALJ's decision, a court reviews the record as a whole, not just the evidence supporting the decision of the ALJ. Walker v. Matthews, 546 F.2d 814, 818 (9th Cir. 1976). A court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). In short, a court must weigh the evidence that supports the Commissioner's conclusions and that which does not. Martinez, 807 F.2d at 772.

If there is substantial evidence to support the decision of the ALJ, it is well-settled that the decision must be upheld even when there is evidence on the other side, Hall v. Secretary, 602 F.2d 1372, 1374 (9th Cir. 1979), or when the evidence is susceptible to more than one rational interpretation, Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). If supported by substantial evidence, the findings of the ALJ as to any fact will be conclusive. 42 U.S.C. § 405(g); Vidal v. Harris, 637 F.2d 710, 712 (9th Cir. 1981).

II. Eligibility for Disability Benefits

The claimant bears the burden of proof in establishing entitlement to disability benefits under Title II of the Act.

Green v. Heckler, 803 F.2d 528, 530 (9th Cir. 1986). To meet this burden, a claimant must establish that a medically determinable physical or mental impairment prevents him or her from engaging in substantial gainful activity, and that the impairment is expected to last for a continuous period of at least twelve months or result in death. Id. The impairment must result from abnormalities which are demonstrable by medically acceptable clinical or laboratory diagnostic techniques. Id.

The Secretary has established a five-step sequential evaluation process for determining disability. The standards for evaluating a claim of disability under Title II of the Act are set forth in 20 C.F.R. §§ 404.1520 et seq.

The Supreme Court summarized this evaluation process in Bowen v. City of New York, 476 U.S. 467 (1986), as follows:

The first step determines whether the claimant is engaged in "substantial gainful activity." If he is, benefits are denied. (citation omitted.) If he is not engaged in such activity, the process moves to the second step, which decides whether the claimant's condition or impairment is "severe," i.e. one that significantly limits his physical or mental ability to do basic work activities. If the impairment is not severe, benefits are denied. (citation omitted.) If the impairment is severe, the third step determines whether the claimant's impairments meet or equal those set forth in the "Listing of Impairments". . .contained in . . . the regulations (citation omitted). The listings consist of specified impairments acknowledged by the Secretary to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the listed impairments, he is conclusively presumed to be disabled and entitled to benefits. If the claimant's impairments are not listed, the process moves to the fourth step, which assesses the individual's "residual functional capacity" (RFC); this assessment measures the claimant's capacity to engage in basic work activities. If the claimant's RFC permits him to perform his prior work, benefits are denied. If the claimant is not capable of doing his past work, a decision is made under the fifth and final step whether, in light of his RFC, age, education, and work experience, he has the capacity to perform other work. If he does not, benefits are awarded. Id. at 470-71.

Once a claimant demonstrates, at step four, an inability to return to past relevant work because of a medical disability, the burden shifts to the Secretary to show that the claimant can perform other substantial gainful work existing in the national economy when considering the claimant's age, education and work experience. Id. In determining whether a claimant can engage in any substantial gainful employment, the ALJ must examine four kinds of relevant evidence: (1) objective medical facts; (2) medical opinions of physicians who have made these clinical findings; (3) subjective evidence from the claimant and his or her relatives; and (4) the claimant's background, work history and present age. Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968); Kelly v. Matthews, 420 F. Supp. 359, 363 (W.D.N.C. 1976). This does not mean, however, that all four kinds of evidence must support or refute a finding of disability. Id. The subjective evidence of the claimant is entitled to great weight, especially when it is uncontradicted in the record. Meza v. Harris, 501 F. Supp. 180, 182 (D. Ore. 1980).


Plaintiff argues that ALJ Wurdeman did not make a fair assessment of the available evidence in her application for DIB and, thereby, erred in denying her application under the applicable provisions of the Social Security Act. Plaintiff contends that the ALJ looked at the medical evidence that pertained to obstetrics/gynecology without considering the "evidence file" that she had submitted with her petition for reconsideration on July 25, 2003. The Commissioner argues that ALJ Wurdeman is bound by the findings of the prior ALJ under Chavez and AR 97-4(9) and that he made a fair and accurate assessment of the medical records for the relevant period. The Commissioner contends that ALJ Wurdeman determined accurately that there were no changed circumstances in Plaintiff's physical or mental condition.

"The principles of res judicata apply to administrative decisions, although the doctrine is applied less rigidly to administrative proceedings than to judicial proceedings." Chavez, 844 F.2d at 693. The first ALJ's findings concerning a claimant's RFC, education, and work experience are entitled to res judicata effect. Id. at 694. Where an ALJ has determined in a hearing on a prior application that a claimant is not disabled, the Social Security Administration presumes in determining disability on a subsequent application for benefits that the non-disability continues. Id. at 693-94. The claimant bears the burden of showing a materially changed circumstance in order to overcome this presumption. Id. at 693. A claimant may rebut the presumption by showing: a change in the claimant's age category under 20 C.F.R. § 404.1563 [Disability insurance - age as a vocational factor] . . . . an increase in the severity of the claimant's impairment(s), the alleged existence of an impairment(s) not previously considered, or a change in the criteria for determining disability.

SSA AR 97-4(9) at *3.

During the relevant period, Plaintiff was still considered a younger person because she was thirty-seven years old. See 20 C.F.R. § 404.1563(c) (considering a claimant under age fifty to be a "younger person" whose age is not considered to affect seriously his or her ability to adjust to other work). Moreover, the additional medical records merely include two visits with Dr. Heiler, one on November 27, 2000 and one on December 17, 2001. These visits indicate that Plaintiff had intermittent pain in the upper shoulder region and tenderness in her right arm. However, on December 17, 2001, two weeks before her insured status expired, Dr. Heiler's examination revealed that Plaintiff had full grip strength and full range of motion in her shoulders. Also, during the relevant period, Plaintiff underwent conservative treatment only and took a mild pain reliever: Ibuprofen. Therefore, Plaintiff has presented no new significant medical record to show any change in her physical or mental condition during the relevant period. Thus, there is no evidence to support a changed circumstance indicating a greater disability.

In addition, the evidence of Plaintiff's vocational training during the relevant period of eligibility indicates that her physical injuries did not impede her performance: she had a one-hundred percent attendance rate and a 4.0 grade point average. (Tr. 128-29.) Plaintiff claims that her stellar performance in the vocational program was because of the "supporting and helpful people" in her life and that she was struggling with "daily pain and discomfort." Pl. Reply at 2. However, Plaintiff does not present evidence to support this claim. The "evidence file" to which Plaintiff refers in support of her struggle with pain includes merely her own letters, dated from April 1, 2003, to January 10, 2005, which she allegedly sent to various State officials complaining about the procedural steps to obtain DIB. This evidence does not rebut the presumption of continued absence of disability, as required under Chavez.

The medical evidence pertaining to Plaintiff's mental impairments is equally insufficient to show disability during the relevant period. Aside from her own letters, Plaintiff has submitted no evidence to prove significant mental impairment during the relevant period. The general observations by Dr. Heiler, who diagnosed Plaintiff with an adjustment reaction, do not support a finding of disability and, although Dr. Heiler referred Plaintiff to a psychiatrist, Dr. Ahart, there are no notes from Dr. Ahart to indicate that Plaintiff ever saw her during the relevant period.

Also, State agency physicians' and psychiatrists' review of Plaintiff's record, and their conclusion that the evidence does not support a finding of disability, further corroborates that there were no changed circumstances in Plaintiff's physical or mental impairment during the relevant period. These doctors determined that, during the relevant period, Plaintiff had the RFC to perform work that did not require repetitive or prolonged manipulations. This is consistent with the RFC assessed by ALJ Lazuran in 1999.

Because Plaintiff has failed to present evidence constituting a changed circumstance during the relevant period, res judicata applies to the prior ALJ's finding that Plaintiff is not disabled. See Chavez, 844 F.2d at 693.

Furthermore, there was no basis for ALJ Wurdeman to reopen Plaintiff's application filed prior to ALJ Lazuran's decision of November 24, 1999. A determination or decision may be reopened if there is "good cause" to do so, as where "new and material evidence is furnished." 20 C.F.R. §§ 404.988(b), 404.989(a)(1); see also Chavez, 844 F.2d at 693. The evidence Plaintiff presented to ALJ Wurdeman pertaining to the period prior to ALJ Lazuran's decision, i.e. prior to the relevant period, is the same as the evidence she had presented to ALJ Lazuran. In the absence of new evidence pertaining to this prior period, ALJ Wurdeman could not reopen the prior determinations of ALJ Lazuran. Therefore, ALJ Wurdeman correctly decided under 20 C.F.R. §§ 404.988(b), 404.989(a)(1), Chavez and AR 97-4(9), that he was bound by the determinative findings of the previous ALJ.

Because Plaintiff's past job as a fast food assistant manager no longer qualified as past relevant work, ALJ Wurdeman proceeded to step five of the five-step evaluation process and applied the Grid. The Grid is an administrative tool that the Commissioner may use at step five of the disability evaluation. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). Based on age, education, work experience, and "exertional capacity," the Grid determines the employability of claimants with "substantially uniform levels of impairment." Id.; see also 20 C.F.R. pt. 404, subpt. P, app. 2. However, the ALJ may rely on the Grids only when they "accurately and completely describe the claimant's abilities and limitations." Burkhart, 856 F.2d at 1340; see also Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999). If a claimant has an impairment that limits his or her ability to work without directly affecting his or her strength, the claimant is said to have non-exertional (not strength-related) limitations that are not covered by the Grid. 20 C.F.R., pt. 404, subpt. P., app. 2 § 200.00(d),(e).

The Grid applicable to individuals with an RFC of light work, 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 2, finds "younger individuals," like Plaintiff, to be not disabled if they have a high school education or more and are skilled or semiskilled with skills that are not transferable. See Rule 202.21. Light jobs "require use of arms and hands to grasp and to hold and turn objects, and they generally do not require use of fingers for fine activities to the extent required in much sedentary work." SSR 83-10.

Principles of res judicata and the absence of changed circumstances made binding the prior ALJ's determinations that Plaintiff had an RFC for light work that does not require prolonged manipulation or repetitive forceful gripping. Moreover Plaintiff's level of education and her previous work experience did not change during the relevant period. Considering these factors, ALJ Wurdeman reasonably applied the framework of Rule 202.21 of the Grid for finding Plaintiff not disabled.

Therefore, a review of the record as a whole indicates that ALJ Wurdeman's assessment of the medical evidence pertaining to the relevant period between November 25, 1999, and the DLI on December 31, 2001, was based on substantial evidence in the record. Plaintiff has not sustained her burden to rebut the presumption of continuing non-disability. Plaintiff's claim that ALJ Wurdeman did not make a fair assessment of the available evidence in her application is DENIED.


For the foregoing reasons, Defendant's motion for summary judgment is GRANTED and Plaintiff's motion for summary judgment or for remand is DENIED.


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