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Gallagher v. Astrue

January 6, 2009


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts are summarized in the Joint Stipulation. [JS 2-4]. Plaintiff previously was found disabled due to a dependent personality disorder and was awarded benefits. In a prior hearing decision dated May 2002, an Administrative Law Judge ("ALJ") terminated plaintiff's benefits as of January 2000 due to medical improvement. [JS 4; Administrative Record ("AR") 23]. On March 18, 2003, the Appeals Council denied plaintiff's request for review of that decision. Plaintiff did not seek judicial review. [JS 4; AR 23].

On January 17, 2003, shortly before the Appeals Council denied his request for review of the ALJ's decision terminating benefits, plaintiff filed a new application for SSI benefits. [JS 4]. He alleged that he had been disabled since March 12, 1996 due to attention deficit and hyperactivity disorder, autism, lower back problems, and arthritis. [JS 2]. In a written hearing decision dated October 13, 2004, a second ALJ declined to reopen the prior decision terminating benefits, and he invoked the doctrine of res judicata to bar reconsideration of the issue of plaintiff's disability prior to May 30, 2002, the date of the prior final decision terminating benefits. [AR 24]. The ALJ also applied a presumption of continuing non-disability with respect to the period after May 30, 2002. [AR 24].

The ALJ found that plaintiff had severe impairments consisting of mood disorder not otherwise specified ("NOS"), personality disorder with dependent and borderline traits, depressive disorder NOS, and back pain. [AR 30]. The ALJ also determined that plaintiff retained the residual functional capacity ("RFC") to perform a reduced range of medium work with numerous non-exertional mental functional limitations. The ALJ further found that plaintiff's RFC did not preclude him from performing his past relevant work as a telemarketer. [AR 30]. Accordingly, the ALJ denied plaintiff's new application for SSI benefits on the ground that plaintiff was not disabled from May 30, 2002 through October 13, 2004, the date of the ALJ's decision. The Appeals Council denied plaintiff's request for review. [AR 4-6].

Plaintiff sought judicial review of the ALJ's October 2004 decision denying benefits. [See Complaint filed April 29, 2005 in Gallagher v. Barnhart, CV 05-03119 AJW ("Gallagher I")]. On September 25, 2006, a memorandum of decision and judgment were filed in Gallagher I reversing the Commissioner's denial of benefits and remanding the case for further administrative proceedings (the "remand order"). [See AR 825-844]. The Appeals Council issued an order remanding the case to the ALJ "for further proceedings consistent with the order of the court." [AR 824].

On remand, the ALJ conducted an additional hearing and accepted additional evidence into the record. On June 7, 2007, the ALJ issued a new written hearing decision, which became the Commissioner's final decision. In that decision, the ALJ revisited and redetermined steps one through four of the sequential evaluation procedure. He reassessed plaintiff's RFC and -- in contrast to his October 2004 decision -- found that plaintiff could not perform his past relevant work as telemarketer. Instead, the ALJ denied benefits at step five on the ground that plaintiff's RFC did not prevent him from performing alternative work. [AR 295-296].

The parties have stipulated that the ALJ correctly summarized the medical and non-medical evidence of record in his June 2007 decision. [JS 5].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or if it is based on the application of incorrect legal standards. Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is more than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Thomas, 278 F.3d at 954. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)); Thomas, 278 F.3d at 954. The court is required to review the record as a whole, and to consider evidence detracting from the decision as well as evidence supporting the decision. Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Scope of Remand Order

Plaintiff contends that the ALJ's redetermination of plaintiff's RFC on remand exceeded the scope of the remand order and constitutes reversible legal error.

The United States Supreme Court has explained that when a district court finds that the Commissioner has committed a legal or factual error in evaluating a particular claim, the district court's remand order will often include detailed instructions concerning the scope of the remand, the evidence to be adduced, and the legal or factual issues to be addressed. . . . Deviation from the court's remand order in the ...

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