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Jackson v. Astrue

June 16, 2009


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge



Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying his application for Supplemental Security Income ("SSI") benefits. Plaintiff claims that the ALJ erred in 1) failing to consider the fact that the Veterans' Administration ("VA") had determined that he was disabled and had awarded benefits; 2) failing to develop the record regarding the VA award; 3) not providing specific, clear, and convincing reasons for rejecting Plaintiff's pain testimony; 4) failing to consider the side effects of Plaintiff's medications; 5) failing to discuss the state agency reviewing physician's mental assessment findings; 6) determining that Plaintiff could perform the jobs of bench assembler and order caller; and 7) failing to consider the combined effect of Plaintiff's physical and mental impairments. (Joint Stip. at 3-6, 11-14, 17-19, 23-24.) As explained below, because the Agency's decision that Plaintiff was not disabled is supported by substantial evidence, it is affirmed.


On August 10, 2000, Plaintiff applied for SSI, claiming that he had been disabled since December 31, 1988, due to "serious feet problems" and "a mental stress disorder/PTSD."*fn1 (Administrative Record ("AR") 93-95, 107.) The Agency denied the application initially and on reconsideration. (AR 75-78, 81-84.) Plaintiff then requested and was granted a hearing before an Administrative Law Judge ("ALJ"). (AR 85.) On December 17, 2001, Plaintiff appeared with counsel at the hearing and testified. (AR 23-43.) On January 11, 2002, the ALJ issued a decision denying the application. (AR 9-16.) Following the Appeals Council's denial of review, (AR 5-6), Plaintiff filed an action in this court. The matter was subsequently remanded pursuant to a stipulation of the parties. (AR 403-07.)

On remand, an administrative hearing was held on October 15, 2003 before a different ALJ. (AR 364-98.) On October 30, 2003, the ALJ issued a decision denying Plaintiff's application. (AR 357-63.) The Appeals Council denied review of the decision on December 20, 2004. (AR 349-51.) Plaintiff then filed an action in this court. On March 11, 2005, the Court remanded the matter to the Agency again, finding that the ALJ had erred by failing to address an opinion by treating physician Dr. Edward Verde and an opinion contained in an unsigned medical source statement. (AR 497-505.)

On August 23, 2007, a third administrative hearing was held, at which Plaintiff, through counsel, requested a closed period of disability from August 2000 to December 2004. (AR 596-601). On September 19, 2007, the ALJ issued a decision, finding that, despite Plaintiff's various impairments, he was capable of working. (AR 485-96.) Thereafter, Plaintiff filed the instant action.


A. The VA Disability Rating and Award

In his first and second claims of error, Plaintiff contends that, because his counsel informed the ALJ at the third administrative hearing in 2007 that the VA had awarded Plaintiff disability benefits sometime in 2004, the ALJ was obligated to develop the record by obtaining the VA disability determination and discussing the VA's "disability rating," citing McCartey v. Barnhart, 298 F.3d 1072 (9th Cir. 2002). (Joint Stip. at 4-6, 8.) For the following reasons, the Court finds that there was no error here.

At the third administrative hearing, which took place in August 2007, almost four years after the previous hearing, Plaintiff's counsel informed the ALJ that Plaintiff "[has] been on VA benefits receiving almost $1,100 for the last several years it seems and so there's an ineligibility issue there with the SSI. And he's already testified in October . . . [2003], so I wasn't really intending to take any testimony here today." (AR 598.) The ALJ asked counsel whether that meant that Plaintiff was seeking a closed period of disability. (AR 598.) Counsel responded, "I was trying to locate the date on his VA award and I don't actually have that. His estimate was that it was sometime around three years ago, which would have put it right around in '04. This application was filed in August of 2000." (AR 599.)

After the ALJ suggested that the closed period be deemed to run from August 20, 2000 to December 2004, he asked counsel if Plaintiff would be testifying at the hearing. (AR 599.) Counsel responded, "No, I think it's too difficult to try to address symptoms specifically in that one period from three years ago. It looks like from the medical records the complaints are all still the same. And we did submit an exhibit of VA records specifically from November of '03 to December of '04 in that period that's at issue." (AR 599-600.) Plaintiff did not testify, and the hearing concluded shortly thereafter.

In his subsequent decision, the ALJ noted that Plaintiff had apparently been found disabled by the VA "sometime in 2004." (AR 486.) The ALJ also discussed the VA records that had been submitted since the prior hearing, noting that "[t]he more recent evidence . . . does not show any material change in [Plaintiff]'s condition, either regarding his feet or his depression." (AR 491.) The ALJ specifically noted evidence that Plaintiff had not been taking medication or doing foot exercises as prescribed, and that, contrary to previous representations by Plaintiff, he was continuing to drink and use drugs. (AR 491-92.)

Plaintiff did not produce any evidence from the VA, either before, during, or after the 2007 hearing, regarding his award of disability benefits or the VA's disability rating. Nor did his counsel apparently feel the need to ...

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