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Lao v. Astrue

August 15, 2008



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Supplemental Security Income under Title XVI of the Social Security Act ("Act"). For the reasons that follow, plaintiff's motion for summary judgment is denied, and the Commissioner's cross-motion for summary judgment is granted. The Clerk is directed to enter judgment for the Commissioner.


Plaintiff, born February 23, 1962, initially applied for disability benefits on May 9, 2000, alleging disability since January 9, 1997, due to arthritis, gout, pain in knees, ankles, wrists, knuckles, shoulders, elbows, and back; weakness and dizziness; difficulty concentrating, sleeping, and eating; hearing voices and seeing things; and, anger, depression and anxiety. Administrative Record ("AR") 61, 72, 238. The application was denied initially and upon reconsideration. AR 47-57. As set forth below, plaintiff filed a subsequent application for SSI benefits in 2002, which was denied. Both the initial and subsequent applications have been the subject of litigation for more than eight years.

Plaintiff's first hearing on his initial application was held before administrative law judge ("ALJ") Antonio Acevedo-Torres on February 19, 2002. AR 21-44. Following that hearing, ALJ Acevedo-Torres issued a written decision finding plaintiff not disabled.*fn2 AR 10-25. The Appeals Council denied plaintiff's request for review, and plaintiff appealed the Commissioner's decision to the district court. On February 12, 2004, the assigned magistrate judge recommended granting plaintiff's motion for summary judgment, finding that the ALJ erred in concluding that plaintiff could perform heavy work. AR 334-46. The district judge adopted those findings and recommendations in full, and the case was remanded for further development regarding plaintiff's exertional capacity, and as appropriate, to obtain the testimony of a vocational expert. Id.

In the meantime, plaintiff filed a subsequent application for SSI benefits in June 2002. AR 361-64. That application was also denied initially and on reconsideration. An administrative hearing was held on August 28, 2003, before administrative law judge L. Kalei Fong, who, on November 26, 2003, issued a decision finding that plaintiff was not disabled. AR 618-37, 289-300. On April 28, 2004, following plaintiff's request for review, the Appeals Council vacated that decision and remanded the case back to ALJ Fong for further proceedings. AR 321-23. Specifically, the Appeals Council ordered that the record be developed further with respect to plaintiff's recurrent episodes of gout and related needs for medically-necessary assistive devices. It also ordered further development of the record regarding plaintiff's residual functional capacity, including consideration of his non-exertional limitations. Id. Accordingly, a subsequent hearing was held on November 19, 2004, before ALJ Fong, who on February 22, 2005, again found plaintiff not disabled. AR 260-67, 638-62.

On April 22, 2005, the Appeals Council issued an order remanding the initial application to a new ALJ pursuant to the district court's March 24, 2004, remand order. AR 349-50. The Appeals Council took note of plaintiff's subsequent application, and found that action on it was rendered "duplicate" in light of the order remanding plaintiff's initial claim for another hearing. Id. Accordingly, the Appeals Council ordered the ALJ to associate the claim files and to issue a new decision regarding the consolidated claims. AR 349-50. The Appeals Council specifically directed the new ALJ to obtain additional evidence concerning plaintiff's impairments, reevaluate his RFC, and if warranted, obtain evidence from a vocational expert. Id.

On May 23, 2006, following a hearing before ALJ Mark C. Ramsey, plaintiff was again found not disabled. AR 237-51. Specifically, the ALJ made the following findings:

1. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.

2. The claimant's gout, osteoarthritis and depression, not otherwise specified are considered "severe" based on the requirements in the Regulations 20 CFR § 416.920(c).

3. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.

4. The undersigned finds the claimant's allegations regarding his limitations are not totally credible for the reasons set forth in the body of the decision.

5. The claimant has the residual functional capacity to lift and carry twenty pounds frequently, claimant should avoid climbing and balancing but could occasionally crouch and crawl. The claimant also retains the ability to understand, remember and carry out simple one or two-step instructions. The claimant can relate and interact with others with no public contact and he can adapt to stresses common to a normal work environment. The claimant also can maintain concentration, attention, persistence and pace and he can maintain regular attendance. In other words, the claimant retains the ability to perform simple, unskilled work.

6. The claimant has no past relevant work (20 CFR § 416.965).

7. The claimant is a 'younger individual between the ages of 18 and 44'(20 CFR § 416.963).

8. The claimant has a 'marginal education' (20 CFR § 416.963).

9. The claimant has the residual functional capacity to perform a significant range of sedentary work (20 CFR § 416.967).

10. Although the claimant's exertional limitations do not allow him to perform the full range of sedentary work, using Medical-Vocational Rule 201.24 as a framework for decision-making, there are a significant number of jobs in the national economy that he could perform. Examples of such jobs include work as a lampshade assembler (DOT #739.684-094); table worker (DOT# 739.687-182); pharmaceutical assembler (DOT #559.687-014) and mounter (DOT #976.684-018).

11. The claimant was not under a "disability," as defined in the Social Security Act, at any time through February 21, 2005 (20 CFR § 416.920(g)).

AR 250-51.

On September 29, 2006, the Appeals Council notified plaintiff that it had not timely received his exceptions to the ALJ's decision, which caused the ALJ's decision to become the final decision of the Commissioner. AR 227-29. Plaintiff therefore initiated this action.


In his motion for summary judgment, plaintiff essentially alleges four errors in the Commissioner's decision. First, plaintiff alleges that the ALJ improperly assessed the medical evidence by failing to credit the opinions of his treating physician, treating psychiatrist, and various consultative examiners. Second, plaintiff asserts that the ALJ improperly assessed his residual functional capacity ("RFC"). Third, plaintiff alleges that the ALJ failed to include all of his limitations in the hypothetical posed to the vocational expert. Finally, ...

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